- An employer may require employees to disclose whether they have, or have been exposed to, pandemic flu. The so-called “direct threat” exception of the ADA would permit this.
- If an employer learns that an employee has an actual or suspected case of pandemic flu, the employer is permitted to share the following information:
- The employer may tell the employee’s direct supervisor so that the supervisor can implement neces sary work restrictions;
- The employer should advise all coworkers who may have come in contact with the employee that they may have been exposed to a co-worker (without naming the co-worker) who has a confirmed or suspected case of flu;
- Where an employee has a confirmed case of the flu and needs to take a medical leave, the employer is permitted to inform employees that the co-worker (by name) will be absent from work for a period of time and reassign job functions accordingly.
- An employer may require that employees stay home if they or members of their family are known or suspected to have pandemic flu or been exposed to someone with pandemic flu. As a practical matter, employers want potentially sick or infected employees to stay home and should administer its leave policies in a manner designed to facilitate that goal. This means that employers may consider paying employees for this time and not requiring them to use sick time that they may need later on, should they become ill with the flu or other illness. The CDC estimates the incubation period for novel H1N1 virus as 1 to 4 days.
- In general, during a flu outbreak, an otherwise healthy employee may not refuse to come to work to avoid being infected. In such a circumstance, the employer may resort to disciplinary measures. However, if the employee has an underlying medical condition that either qualifies as a disability under the ADA or is a serious medical condition under the FMLA, the analysis changes. In that scenario, there may be reasonable accomodation issues under the ADA and, with appropriate medical certification, the leave may be FMLA-protected. Where employment is governed by a collective bargaining agreement, there may be special issues which should be discussed with counsel, as there are likely to be additional complications to consider. w
Publications