Employers are finding that the workplace issues arising from H1N1 are numerous, varied and complex.
“Any meaningful outbreak of H1N1 will cause significant absenteeism, which can cause issues relative to the ability of an organization to function properly,” says Craig W. Snethen, an attorney at Jackson Lewis LLP.
Consequently, more and more employers are seeking assistance in developing written H1N1 policies and creating business continuity plans during a time when they could experience substantial absenteeism.
Smart Business spoke with Snethen about the legal and practical impacts of H1N1.
What are the legal concerns of H1N1?
Depending on the severity of the infection in any given employee, employers must be prepared to address H1N1 issues within the framework of the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Pennsylvania Human Relations Act (PHRA) and the workers’ compensation statute. Other compliance issues will also likely touch on the Health Insurance Portability and Accountability Act (HIPAA), the Occupational Safety and Health Act (OSHA) and the Fair Labor Standards Act (FLSA).
How should employers handle H1N1 in accordance with all those standards?
Employers may send employees home if they display influenza-like symptoms. If employees report feeling ill at work or call in sick, employers may ask them if they are experiencing influenza-like symptoms such as fever and chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Employers generally should consider encouraging employees to get the influenza vaccine rather than requiring them to take it. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents the employee from taking the vaccine. Title VII might also entitle some employees to an exemption where an employee’s sincerely held religious belief, practice or observance prevents him or her from taking the vaccine.
What legal pitfalls could employers face?
Measuring an employee’s body temperature is a medical examination. Therefore, it must be justified by being job-related and consistent with business necessity.
Employers may not ask employees who do not have symptoms of H1N1 to disclose whether they have a medical condition that could make them especially vulnerable to influenza complications. However, during a pandemic, an employer may ask an employee why he or she has been absent from work if it suspects it is for a medical reason.
Employers may need to rely on local clinics to provide a form, stamp or e-mail that certifies that an individual does not have the pandemic virus.