According to the World Health Organization, as of May 13, 2009, there have been 5,728 reports of H1N1 influenza, the virus commonly referred to as “swine flu.”1 In implementing policy and making decisions, employers need to remember the workplace health and safety laws, anti-discrimination laws, wage-and-hour laws and employee privacy rights.
Occupational Safety and Health Act
The Occupational Safety and Health Act (OSHA) requires employers to take measures to protect employees to the extent that a feasible means exists to eliminate or materially reduce a hazard to employees that is likely to cause death or serious harm. Avoiding or reducing an outbreak of H1N1 influenza requires at least a basic plan to (1) prevent the transmission of disease within the workplace; (2) train employees on disease avoidance techniques; and (3) properly handle employees who become ill at work.
Employers should also be aware that if an employee reasonably determines that he/she must choose between not performing assigned tasks or risk serious injury or death in the workplace, OSHA permits the employee to refuse to be exposed to the hazard.2 Whether an employee would be able to meet the “risk of serious injury or death” standard in the H1N1 influenza context is currently speculative; however, the infection control measures put in place by the employer will surely be a factor in the analysis.
Family Medical Leave Act Issues
Influenza ordinarily does not meet the definition of a serious health condition under the Family and Medical Leave Act.3 Still, H1N1 may qualify as a serious health condition in specific cases with severe symptoms that result in multiple visits to a health care provider. When in doubt, require the employee to provide a completed health care provider certification.
Disability Discrimination: ADA and State Anti-Discrimination Law
At present, H1N1 influenza is said to be a temporary, not chronic, infection that resembles other varieties of influenza.4 Those who contract the virus may not qualify as having a “disability” under the Americans with Disabilities Act (ADA).5 However, the ADA would certainly become a factor if there were complications or related conditions that would “substantially limit” one or more “major life activities.”
Employers are not required to allow contagious employees to continue working.6 Employees who present a “direct threat” can be restricted from the workplace. Whether a particular employee presents a direct threat should be determined based upon each particular situation.7
A medical condition is a direct threat under the ADA when it poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”8
Before requiring medical certification, an employer should evaluate whether the individual’s present health condition actually poses substantial harm to others; it is likely to be insufficient for the employer to rely on fear of a pandemic. Moreover, when requiring a medical examination or certification as a condition for employee attendance at work, employers should take care not to seek any information other than a simple statement from the physician regarding the employee’s fitness for duty. If the employee refuses to provide requested medical certification or if a medical professional indicates that the employee’s contagious status is a direct threat to safety in the workplace, the employer may prohibit the employee from coming to work. 9
Even if an immunization to a virus such as H1N1 influenza were available, before an employer could safely require proof of immunization it would need to show that immunity to influenza is “job-related and consistent with business necessity.”10 Employers need to keep in mind, however, that mandatory immunization can raise accommodation issues for employees who have religious objections to such medical treatment.
Race and National Origin Discrimination
Because H1N1 influenza originated in and is associated with Mexico, employers should take steps to ensure that employees of Hispanic/Latino ethnicity are not targeted by influenza-related policies or practices because of their ethnicity. Where the only employees affected by an employer’s influenza-related practices are Hispanic/Latino, the employer must demonstrate that the challenged practice is "consistent with business necessity" under Title VII of the Civil Rights Act of 1964.11
Absent clear waiver, employers whose workforce is unionized have an ongoing duty to bargain with unions regarding any changes to the terms and conditions of employment.12 Employers should review existing collective bargaining agreements and past practices before unilaterally implementing changes. Unionized employers may want to proactively identify how a pandemic may impact their workforce and reach agreement in advance as to changes that may be needed to respond to high rates of absences or use of temporary staff.
At all times in the midst of a pandemic outbreak, employers should seek and consult information from reliable federal and state agencies.
The U.S. Department of Health and Human Services provides the following information to help citizens and organizations:
- Monitor outbreaks
- Learn about travel advisories and restrictions
- Plan and prepare for pandemic influenza (site provides a checklist for employers that covers issues such as developing lines of communication for influenza outbreaks, identifying essential work functions, and ensuring medical care for affected employees)
Some other informative Web sites:
1 World Health Organization, Influenza A(H1N1), http://www.who.int/csr/disease/swineflu/en/index.html (last visited May 13, 2009).
2 29 C.F.R. § 1977.12(b)(2).
3 29 C.F.R. § 825.114(c).
4 Centers for Disease Control, H1N1 Flu (Swine Flu) and You, http://www.cdc.gov/h1n1flu/swineflu_you.htm (last visited May 13, 2009) (“At the current time, CDC believes that this virus has the same properties in terms of spread as seasonal flu viruses. With seasonal flu, studies have shown that people may be contagious from one day before they develop symptoms to up to seven days after they get sick. Children, especially younger children, might potentially be contagious for longer periods. CDC is studying the virus and its capabilities to try to learn more and will provide more information as it becomes available.”).
5 Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (“[A] temporary, non-chronic impairment of short duration is not a disability covered by the ADA.”).
6 See 42 U.S.C. §12113(b); H.R. Rep. No. 101-485, pt. 3, at 34, 45-46 (1990) (citing School Board of Nassau County v. Arline, 480 U.S. 273, 287, fn16 (1987) (Footnote 16 of Arline states in part that “a person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his/her job if reasonable accommodation will not eliminate that risk.”).
7 EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, 8 FEP Manual (BNA)405:7461, 7468-69 (1997).
8 29 C.F.R. § 1630.2(r).
9 42 U.S.C. §12113(b).
10 42 U.S.C. § 12112(d)(4)(A).
11 42 U.S.C. § 2000e-2(1)(A)(i).12 29 U.S.C. § 158(a)(5).