The H1N1 virus threat raises questions for employers who need to provide a safe workplace without violating employee rights under the disability discrimination, privacy and other laws. Upon learning that an employee had the swine flu, one of our professional services firm clients asked for guidance; in particular, whether the employer has an obligation to tell – or not tell - the rest of the employees. We made a number of recommendations.

Rather than debate whether H1N1 infection is a “serious health condition” that triggers employee rights under federal and state disability discrimination law, and whether the pandemic poses a “direct threat” to others in the workplace that can supersede such employee rights, it is often best to approach H1N1 infection as a serious health condition that may be a direct threat. Since employees have privacy rights regarding their medical conditions, employers should treat all such information as a confidential medical record and not identify the individual by name to other employees or supervisors. Instead, the employer can say that “a worker” has been identified. Employers should encourage and, in some instances, require employees to engage in good preventative measures such as hand washing, sneezing and cough etiquette, proper tissue usage and disposal, avoiding close proximity with other workers, and working at other employer facilities or at home. Encourage the affected employee to go home for the benefit of themselves and others. Since employers must take reasonable measures to provide a safe workplace, employers must use good judgment whether to require the employee to go home and work from there, take sick days, or go on a leave of absence. Employers may require a written medical clearance from the employee’s health care provider before the employee is permitted to return to work.

Soon after this client situation was resolved, the Equal Employment Opportunity Commission issued an interpretive memorandum, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” provides guidance that is consistent with our recommendations. The EEOC also highlights that, ordinarily, an employer is prohibited from making further inquiries about an employee’s medical condition, except to determine what essential job functions an employee can and cannot do. However, during a pandemic, employers may make further inquiries, even if disability-related, if justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

The EEOC warns that employers may not, for example, require medical examinations of employees, such as measurement of employee body temperatures, unless the pandemic becomes wide spread in the community as assessed by state or local health authorities or the Centers for Disease Control and Prevention, ask whether employees have any medical condition that could make them more vulnerable to infection, or require employees to receive vaccines.

Find the EEOC guidance at www.eeoc.gov/facts/pandemic_flu.html. Centers for Disease Control and Prevention and California Department of Public Health resources are at www.cdc.gov/H1N1FLU/ and www.cdph.ca.gov. The Society of Human Resource Managers’ toolkit, “Doing Business During an Influenza Pandemic,” is at www.shrm.org/about-shrm/press-room/press-releases/documents/cidraptoolkit.pdf.

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