We’re in the middle of flu season. The flu and other communicable diseases present a number of challenges for employers. What’s your duty to prevent the spread of contagious diseases in your workplace? Can you require an employee who may be contagious to stay home? How do you react to suspicions within the workforce that a coworker may have a communicable disease?
Balance OSHA duty with employee’s ADA, FMLA rights
Under occupational safety and health laws, employers owe a duty to maintain a safe workplace. That duty includes taking reasonable measures to prevent the spread of disease. All employers, regardless of their size or industry, should do basic things to prevent the outbreak of contagious diseases, such as making tissues and antibacterial soap available to employees. Encouraging hand washing, disinfecting the workplace, offering yearly flu shots, and urging employees to get immunizations are also good practices. Usually, simple common sense serves as the answer to most questions.
But sometimes things can get more complicated if an employee’s rights under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), or another law come into play. Regardless of whether an employee with a communicable disease has any legal rights, his coworkers may not be subjected to an unreasonable risk of infection. Of course, different diseases warrant different precautions.
In nearly all workplace environments, an employee with a highly contagious illness (such as measles or the flu) presents a much greater risk than an employee with hepatitis, HIV, or some other bloodborne disease. Employers in the healthcare industry and other industries in which there’s a meaningful risk of infection should have formal policies for responding to pandemics and other emergencies. Helpful guidance from the Equal Employment Opportunity Commission (EEOC) about preparing for a pandemic while balancing employees’ rights under the ADA may be found at www.eeoc.gov/facts/pandemic_flu.html.
It’s OK to ask an employee if she has a cold or the flu because the EEOC doesn’t consider that a disability-related inquiry. It’s perfectly acceptable (and appropriate) to require employees with an illness that is easily spread to stay home until they have recovered if the illness presents a “direct threat” to others. It’s also fine to require employees to present a doctor’s note before returning to work. Requiring an employee to undergo a medical exam may also be in order under the right circumstances.
HR employees—again exercising simple common sense—should conduct basic research about any communicable illness an employee may have. The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) provide information about contagious diseases on their websites, at www.cdc.gov and www.osha.gov/SLTC/healthcarefacilities/infectious_diseases.html, respectively. The information provided by the CDC and OSHA can help you learn about specific diseases, how they are spread, and the precautions you can take to prevent an outbreak.
Although looking out for the welfare of your entire workforce is of paramount importance, it’s also critical to protect the dignity of infected employees. That means keeping an employee’s medical condition confidential. It also means not overreacting to mere rumors and suspicions. An uncorroborated suspicion that an employee has a communicable disease doesn’t justify requiring her to undergo a medical exam or stay home. By implementing some basic measures, you can ensure that your workplace is safe, healthy, and productive while respecting your employees’ privacy and other rights.
This article originally appeared in the Tennessee Employment Law Letter by Butler Snow’s David L. Johnson.