Responses to Flu Outbreak Generate Hidden Employment-Related Liabilities

While the wave of reported H1N1 Flu Virus (aka “Swine Flu”) cases continues to rise, information overload about recommended hygiene practices in the workplace appears to have reached an all-time high. What can an employer do to prevent the spread of the virus at work? Cover your nose and mouth when sneezing or coughing, we are told. Wash your hands often using proper techniques. Avoid close contact with people who are sick and may be infected. And, of course, don’t forget your Vitamin C.

Despite these important health care reminders, with well over 100 school closures to date, every employer is on edge, and many feel compelled to take a more proactive approach. For some employers, this means inquiring into the health status of employees and their family members. For others, it means asking employees about their recent travel-related activities. For others still, it means sending certain categories of employees home from work, if necessary, and/or allowing them to telecommute until the heightened alert level subsides. To the extent conditions worsen, it may even mean temporarily suspending operations.

Although public and workplace safety should always be among every employer’s primary concerns, employers should nonetheless be aware that their responses to the recent flu outbreak may cause compliance concerns with respect to a wide variety of employment-related laws, including:

Leave-Related Laws.

Under the federal Family Medical Leave Act and its state counterpart, the California Family Rights Act, eligible employees are entitled to up to 12 weeks of unpaid leave per year to care for their own serious health condition, or that of a qualifying family member. In addition, in California, all employees are entitled to use up to one-half of their annual sick leave entitlement for the purposes of “kin care” when a child, parent, spouse, or domestic partner is sick. Moreover, an employee who contracts H1N1 Flu Virus while in the workplace or during working time may be eligible for workers’ compensation benefits, including leave, under certain circumstances. As a result, employers must comply with all of these leave-related laws, as well as their own policies and practices, whenever an employee produces evidence that he or she (or a qualifying family member) suffers from flu-like symptoms and/or the H1N1 Flu Virus.

Privacy/Confidentiality.

In California, employers should also be cognizant of the constitutional right to privacy and the Confidentiality of Medical Information Act, which combine to define employees’ medically-related information as private and require employers to maintain its confidentiality. Thus, not only should employers who are concerned about the H1N1 Flu Virus carefully consider whether the circumstances justify asking employees about their health status and other private activities such as travel, but employers must also understand that they are generally prohibited from obtaining an employee’s medical records, or from using or disclosing medical information in their possession, without prior written authorization from the employee. To be valid, the authorization must satisfy a variety of specific requirements. As a result, any employer who wishes to obtain or disseminate information about an employee’s health status so that it may determine whether the employee poses a workplace risk related to the H1N1 Flu Virus must receive the necessary authorization before doing so.

Wage & Hour Issues.

Wage and hour issues may also come into play if an employer sends an employee, or group of employees, home based on flu-like symptoms, or other concerns regarding the H1N1 Flu Virus. Under California law, for example, absent an act of God or other cause not within the employer’s control, a non-exempt employee who reports for work but is then told to leave due to flu-like symptoms prior to working at least half his or her usual or scheduled workday must be paid for at least half his or her usual or scheduled day. Similarly, exempt employees who are ready, willing, and able to work, but are involuntarily sent home due to H1N1 Flu Virus-related concerns, must ordinarily still receive their entire weekly salary unless they do not perform any work during the course of the workweek. Employers should consult qualified counsel regarding the legality of charging an exempt employee’s sick leave account and/or deducting salary under these circumstances. Moreover, absent adequate notice or an applicable exception, an employee’s vacation or Paid Time Off account should not be charged when the employer mandates the time away from work. Finally, if an employee who travels for business requests to use an alternative form of transportation based on concerns related to the H1N1 Flu Virus, the employer should consult with qualified legal counsel to ensure compliance with applicable laws regarding travel time and reimbursement of expenses.

Anti-Discrimination Laws.

Both state and federal law prohibit discrimination on the basis of certain legally protected categories. As a result, any employer wishing to prohibit certain categories of employees from entering the workplace should carefully consider whether any such policy or practice may have a disparate impact on one or more protected classes. For example, a policy stating that employees who have recently traveled to Mexico are prohibited from reporting to work could discriminate against employees on the basis of their race, national origin, citizenship, and/or ancestry. Similarly, an employer that sends an employee with apparent flu-like symptoms home against his or her will may subject itself to claims of discrimination on the basis of a disability or certain other protected medical conditions, which, unlike the H1N1 Flu Virus, are not contagious. As a result, employers should consult with qualified legal counsel prior to implementing any such policies.