Both the World Health Organization and the Center for Disease Control and Prevention have indicated that the H1N1 virus may severely impact the workplace this fall and winter. As a result, employers must be aware of the various laws that govern the workplace when responding to a pandemic flu. For example, the Occupational Safety and Health Act ("OSHA") requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." Furthermore, employers must consider various discrimination and leave laws when implementing a pandemic flu response plan.
In order to provide a safe and healthy working environment to all employees and protect employees from work-related exposure to the H1N1 flu virus, an employer may lawfully (1) require its employees to adopt infection control practices such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal; (2) require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of a pandemic virus; and/or (3) encourage or require employees to telecommute as an infection-control strategy. An employer can require an employee to stay home if there is accurate and reliable medical information indicating that the employee may pose a "direct threat" to the health and safety of other employees.
Under the Family and Medical Leave Act, an eligible employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve (12) weeks of continuous or intermittent leave. Whether H1N1 is a serious medical condition will necessarily depend on the facts of each individual case. However, due to concerns of a nationwide flu pandemic, it likely may be
considered a serious medical condition.
Finally, although H1N1 appears to have originated in Mexico, employers must not use this information to discriminate against workers of Mexican nationality. Discrimination based on nationality, even if it is based on an honest fear of the H1N1 flu virus, would violate federal and state discrimination laws.
Employers who are considering plans to deal with potentially high levels of absenteeism as a result of an H1N1 outbreak may survey their workforce to gather personal information needed for pandemic preparation, but may only ask "broad questions that are not limited to disability-related inquiries." Therefore, an employer should ask questions that place non-medical reasons for an absence during a pandemic on equal footing with medical reasons. For example, an employer is permitted to ask its workforce whether certain conditions (e.g., mandatory school closures, curtained public transportation, or chronic illnesses that weaken immunity) will affect an employee's ability to come to work. However, an employer that chooses to do so should ask employees to simply answer "yes" or "no" as to whether any of the reasons might apply to them without identifying the specific condition applicable to the employee. For an example of an ADA-Compliant Pre-Pandemic Employee Survey,
The recent H1N1 flu outbreak should serve as a reminder to employers of the importance of knowing how to appropriately respond to a serious epidemic. Employers need to react (without overacting) to employees who contract contagious diseases like H1N1. Please contact any member of our labor and employment department if you would like assistance in preparing for or responding to a serious influenza epidemic.