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► Legal Concerns When Contagious Diseases Strike The Workplace

The reports of measles outbreaks in several communities around the country have been on virtually everyone's mind over the last few months. As those reports serve to emphasize, if proper precautions such as vaccinations aren't taken, infectious diseases can wreak havoc not only in your community but also in your workplace. Accordingly, you should be concerned about an outbreak of measles or some other highly contagious infection such as influenza spreading among your employees.

An outbreak of illness can lead to lost workdays that severely disrupt your operations, damaging your business. You are most at risk if your operations require employees to have frequent regular contact with the public at large—for example, if you operate in the healthcare, childcare, education, food service or hospitality, or public transportation sector.

Advance planning for how to deal with an outbreak provides you an opportunity to minimize the disruption as well as protect the health of your employees and avoid potential legal liability.

Diseases to Worry About

These days, the most prominent contagious diseases are measles and influenza. Measles is particularly worrisome because it's one of the most highly contagious viral diseases, easily transmitted through the air by everyday actions such as coughing, sneezing, and talking.

If you breathe contaminated air or touch infected surfaces and then touch your eyes, nose, or mouth, you can contract measles. Even more concerning is the fact that the measles virus can live for up to 2 hours on a surface or in the air, and an infected person is contagious from 4 days before until 4 days after symptoms appear.

The symptoms of measles include high fever, cough, runny nose, watery red eyes, and, most prominent, a rash on the face at the hairline that spreads down the body 3 to 5 days after the initial symptoms manifest themselves. Some people may experience complications such as ear infections, diarrhea, pneumonia, encephalitis, or even death (although that's rare).

Influenza is another highly contagious viral disease that's transmitted through the air. Like measles, the flu virus enters the body mainly through inhalation, but it can be transmitted by touching infected surfaces. A person with the flu is contagious 1 day before her symptoms appear and for up to 7 days after she becomes sick. The illness is typically prevalent from October through April.

Symptoms include not just a cough or sore throat and a runny or stuffy nose but also a fever of 100 degrees or higher accompanied by headaches or body aches, chills, fatigue, nausea, vomiting, or diarrhea. Most people with the flu recover within a few days or, at most, 2 weeks. However, serious complications such as pneumonia can develop. The flu can also worsen preexisting conditions such as asthma, diabetes, and heart disease.

What Can You Do About Absenteeism?

In the event of an outbreak at your workplace, you should expect a high rate of absenteeism. The Centers for Disease Control and Prevention (CDC) recommends that sick employees stay home at least 24 hours after they're free from fever to prevent the spread of a contagious virus at work.

If a sick employee comes to work, he should be sent home, and all employees should be encouraged to cover their mouths when they cough or sneeze. You should also prepare for increased absences due to family members becoming ill, schools or childcare centers closing, or even public transportation being disrupted.

When planning for absenteeism, you may survey your workforce to gather the information you'll need if there's a severe outbreak. Your inquiry should be carefully structured, requiring employees to merely answer "yes" or "no" to limited questions. The Equal Employment Opportunity Commission (EEOC) recommends survey questions like:

• If schools or daycare centers are closed, would you need to care for a child?

• If certain services are unavailable, would you need to care for other dependents?

• If public transportation is sporadic or unavailable, would you be unable to travel to work?

• If you or a member of your household is at high risk for serious complications from an influenza pandemic, would you be advised by public health authorities not to come to work? (This would include pregnant women; people with compromised immune systems due to cancer, HIV, an organ transplant, or other medical conditions; people younger than 65 with underlying chronic conditions; and people older than 65.)

During a severe outbreak or pandemic, you should consider protecting employees who are at high risk for complications. Employees should be encouraged to wash their hands frequently, clean hard surfaces and other areas that are likely to be touched often, and get vaccinated. Other preventive steps include increasing the social distance between employees in the workplace.

Screening Your Employees

When a serious outbreak occurs, you may need to make disability-related inquiries of your employees to plan for absenteeism or implement the CDC's recommendations for "active screening." If there's an outbreak in your facility or office, you can require employees to undergo a medical exam to ensure they're free of disease before coming to work.

In an active screening, you may ask employees if they are experiencing symptoms such as chills and a cough or sore throat, and you can send sick employees home based on the information you receive.

You'll need to be careful, however, because the Americans with Disabilities Act (ADA) prohibits "disability-related" inquiries and medical examinations of employees unless they're "job-related and consistent with business necessity."

In most situations, the widespread outbreak of a serious contagious disease such as the measles would probably be sufficiently job-related and consistent with business necessity to justify instituting a medical screening program.

Importantly, you must treat the information you elicit during an active screening like a confidential medical record and maintain its confidentiality under both the ADA and the Health Insurance Portability and Accountability Act (HIPAA).

Accommodating Employees with the Flu

Even under the ADA Amendments Act's (ADAAA) expanded definition of "disability," it's unlikely that measles or the flu would be covered as an actual disability. Reasonable accommodations may be necessary, however, for employees with existing disabilities who are at risk of experiencing complications from the flu. Consequently, your disabled employees may request work accommodations to minimize their exposure to measles or the flu.

In response to such requests, you should engage in the same interactive process you would undertake for other accommodation requests. Accommodations could include an alternative work environment (e.g., working from home) or a modified work schedule to reduce contact with coworkers.

Without a request for an accommodation, however, you shouldn't attempt to impose any changes or restrictions based on your belief that an employee may be at risk. Doing so might create a "regarded as disabled" claim under the ADA.

FMLA Considerations

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid, job-protected leave to recover from their own serious health condition or to care for immediate family members with a serious health condition.

A "serious health condition" requires inpatient care, continuing treatment by a healthcare provider, or incapacity plus treatment (i.e., the person must be incapacitated for 3 consecutive calendar days and undergo either 2 days of treatment by a healthcare provider or 1 day of treatment plus a regimen of continuing treatment). Although not disabilities, measles or the flu are likely to be considered serious health conditions under the "incapacity plus treatment" prong of the FMLA definition.

Be aware there will be a significant increase in the number of requests for FMLA leave you receive during a serious outbreak. As a result, many healthcare providers will be overwhelmed and unable to treat all patients or provide responses to requests for medical certifications.

Thus, you should be prepared to ease the requirements for obtaining FMLA leave during a serious outbreak. In such situations, the Act's strict rules will need to bend given the significant impact of a flu or measles outbreak on the medical community.

Is Mandatory Vaccination Legal?

The CDC recommends vaccination to prevent infection and the spread of disease. Vaccinations are important for healthcare personnel, including physicians, nurses, nursing assistants, therapists, medical technicians, emergency medical personnel, dentists and dental hygienists, and pharmacists. Employees who perform clerical, food preparation, housekeeping, and laundry work also should be vaccinated.

ADA concerns. Importantly, you cannot compel all of your employees to be vaccinated. According to the EEOC, an employee may be exempt from a mandatory vaccination policy if he has an ADA-covered disability and being vaccinated would compromise his health.

Even though you may not be able to compel a disabled employee to get vaccinated, you may still take appropriate steps to prevent him from putting other employees or the public at risk, especially if not being vaccinated would pose a "direct threat."

The ADA doesn't protect a disabled employee who constitutes a direct threat, which is defined as "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."

To show that someone poses a direct threat, you must have objective, factual evidence. Four factors you should consider are (1) the duration of the risk, (2) the nature and severity of any potential harm, (3) the likelihood that potential harm will occur, and (4) the imminence of the potential threat.

You also don't need to accommodate a disabled employee by exempting her from being vaccinated if doing so would constitute an undue hardship on your business. The ADA "undue hardship" analysis is based on an individualized assessment of current circumstances that shows a specific reasonable accommodation—in this case, exempting a disabled employee from being vaccinated—would cause significant difficulty or expense for your operations.

Factors to consider when you conduct the analysis include the type of operations you have (e.g., the structure and functions of your workforce), the number of people you employ, the resources available at your facility, and any evidence of safety concerns.

Title VII concerns. Title VII of the Civil Rights Act of 1964 also may come into play if a mandatory vaccination policy would violate an employee's sincerely held religious beliefs, practices, or observances. But like the ADA, Title VII protects an employer that can show exempting an employee from mandatory vaccination would cause an undue hardship.

Significantly, the standard for establishing an undue hardship under Title VII is much lower than the ADA standard. All you need to demonstrate is that the religious accommodation would impose more than a de minimis, or minimal, expense or disruption to your operations.

Bottom Line

Now is the time to think through and plan for how you will deal with an outbreak of disease in your community or workforce. Don't wait until a highly contagious illness such as measles or the flu invades your workplace to begin planning how to handle the crisis.

Remember that any plan for dealing with a viral outbreak will implicate a number of laws that protect your employees. To ensure your plan will pass muster under the applicable legal requirements, it's advisable to consult with experienced employment counsel.

One thing you clearly don't need when you're dealing with the significant disruption that accompanies an infectious disease outbreak is a discrimination charge or lawsuit accusing you of illegal behavior.

By Michael E. Barnsback and Madeline Swank. Mr. Barnsback is a partner with O'Hagan Meyer, practicing in the firm's Alexandria office. Barnsback is an editor of Virginia Employment Law Letter. Ms. Swank is a legal intern at O'Hagan Meyer.



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