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Protecting Your Business and Avoiding Liability in the Face of the H1N1 Virus

By Darryl G. McCallum

Over the past several months, the H1N1 influenza outbreak has continued to grow both in the United States and in other countries. In June 2009, the World Health Organization raised the level of influenza pandemic alert to level six (the highest level), indicating the start of an actual pandemic.[1] As of September 25, 2009, 26 states had reported widespread influenza activity, prompting companies to take steps to prepare for a possible influenza outbreak in the workplace.[2] A recent report by the President’s Council of Advisors on Science and Technology predicted that by the end of the winter flu season, H1N1 influenza could infect 30 to 50 percent of the U.S. population and could lead to as many as 1.8 million U.S. hospital admissions and up to 90,000 deaths. Moreover, on October 23, 2009, President Obama declared the H1N1 flu outbreak to be a national emergency.

The H1N1 influenza not only poses a threat to the health of the public at large but also presents significant challenges to businesses, as they attempt to cope with the possibility of widespread absences from work and employee illness caused by an H1N1 outbreak. This article examines some of the legal pitfalls in-house counsel may face as they attempt to respond to a potential H1N1 pandemic in the workplace, particularly with regard to balancing an employer’s obligations under the Occupational Safety and Health Act (OSH Act) and the Americans with Disabilities Act (ADA). The spread of the H1N1 influenza has caused employers to revisit their leave policies, telecommuting policies, and other workplace policies to prepare for a possible widespread flu outbreak in the workplace.

An Employer’s Safety Obligations to Its Employees
Acording to the U.S. Centers for Disease Control (CDC), “[b]usinesses and employers, in general, play a key role in protecting employees’ health and safety, as well as in limiting the negative impact of influenza outbreaks on the individual, the community, and the nation’s economy.”[3] Although it is uncertain how severe the H1N1 flu outbreak will be, the CDC, U.S. Occupational Safety and Health Administration (OSHA), and other federal agencies have developed guidelines and checklists to assist employers in planning for a pandemic outbreak.[4]

Under the Occupational and Safety Health Act’s general duty clause,[5] an employer is required to provide a safe and healthy working environment to all employees. Violations of the clause can result in monetary penalties of up to $70,000 for each violation. OSHA’s recently published guidance on what employers should do to help reduce the risk of occupational exposure to pandemic influenza makes recommendations based on the degree of risk that each type of workplace poses to influenza exposure. Recommendations include, among others, (1) encouraging employees to cover their mouths when they sneeze or cough and to wash their hands frequently, (2) reviewing or adjusting leave policies so as to encourage employees to stay home when they are sick, (3) to the extent possible, using email, telephone, and text messaging to communicate rather than in-person meetings, and (4) providing personal protective equipment, such as face shields or respiratory protection, for those who work closely with people who may have been exposed to the H1N1 virus (e.g., hospital or nursing home employees).[6]

The Department of Homeland Security (DHS), in conjunction with the CDC and the Small Business Administration, has recently advised employers regarding the steps they should take in light of the spread of H1N1 influenza. According to DHS, “The most important thing you can do to prepare your business is to have a written plan.”[7] DHS suggests that an employer’s preparedness plan follow these seven steps:

1. Identify in advance a workplace coordinator (most likely someone in Human Resources) who will be the “go to” person for dealing with H1N1 influenza issues, keeping track of resources regarding the severity of the H1N1 virus in the local community, and developing protocols for responding to ill employees.

2. Make sure that employees are kept informed of the company’s sick leave policies and any employee assistance services covered under any of the employer’s health plans.

3. Determine who will be responsible for assisting workers who become sick at the workplace. (This may be the same person chosen as the workplace coordinator.)

4. Identify essential employees, essential business functions, and other critical inputs required to maintain business operations should there be disruptions during the H1N1 flu outbreak, and have a plan for communicating with, and providing direction to, critical employees and suppliers.

5. Share your pandemic plans with employees and clearly communicate expectations before an outbreak occurs.

6. Prepare business continuity plans in case the H1N1 flu outbreak causes widespread absences from work, such that operations can continue even when a large number of employees are not in the workplace.

7. Establish an emergency communications plan by identifying key business contacts and a chain of communications (including suppliers and customers) so that information regarding the influenza pandemic and its impact on the workplace can be communicated promptly.[8]

Although the seven recommendations listed above are designed for small businesses, all companies, regardless of size, need to have strategies in place that will help protect their business and employees in the event of an outbreak. For instance, larger companies with multiple work locations may need a workplace coordinator for each location who will be the “go to” person for developing and implementing protocols for responding to employee illnesses at a particular location.

Providing a Safe Workplace and Other ADA Obligations
In attempting to comply with their Occupational Safety and Health Administration (OSHA) obligations to provide a safe and healthy working environment, employers must be mindful of their obligations under other laws such as the ADA. For instance, the ADA places limitations on medical-related inquiries by employers and imposes an obligation to treat employee medical information as confidential. The ADA also requires that reasonable accommodations be made for employees with disabilities, including those with medical conditions that make them especially susceptible to developing complications from H1N1.

ADA Limitations on Health-Related Inquiries
A common question that has arisen since the H1N1 pandemic began is, under what circumstances can an employer request medical examinations of employees who are suspected of having, or have admitted to having, the H1N1 virus? The ADA limits health-related inquiries that employers can make of employees and job applicants and further imposes privacy requirements for medical information obtained about an employee. The guidance issued by the Equal Employment Opportunity Commission (EEOC) regarding H1N1 flu preparation provides that an employer can require post-offer medical examinations to entering employees to determine their exposure to the H1N1 flu virus so long as the employer consistently requires such examinations for all entering employees in the same job category.[9] If, however, the medical examination reveals that although the employee does not have the H1N1 virus, he has a medical condition that puts him at increased risk of complications from H1N1 influenza, the employer would not be able to rescind the job offer absent evidence that the employee poses a direct threat to the health and safety of the workplace (discussed further below).[10]

The EEOC also takes the position that an employer may survey its workforce to gather personal information needed for pandemic preparation (i.e., to determine the potential level of absence from work) ifthe employer asks broad questions that are not limited to disability-related inquiries. An employer may, consistent with the ADA, take steps to identify which employees are more likely to be unavailable for work in the event of a pandemic. However, the employer must be sure to structure its inquiry to the employees such that it allows them to identify potential medical and nonmedical reasons for absence during a pandemic and does not ask employees to identify which of the reasons (i.e., medical or nonmedical) applies to them. The EEOC’s website contains an example of an ADA-compliant survey that could be given to all employees before a pandemic.[11]

Privacy of Employee Health Information
One of the thorniest issues in relation to the H1N1 virus is balancing the privacy rights of a sick employee and his or her family with the health concerns of coworkers and clients. The Center for Disease Control (CDC) recommends that coworkers of employees who may have contracted the H1N1 virus be informed of their potential exposure. Consistent with the ADA, however, employers should be careful to safeguard confidential medical information by not disclosing the identity of the infected or potentially infected individual and should ensure that such information is kept in a file separate from the employee’s personnel file. If, for instance, an employee reports that he or she is feeling sick at work, the employer may ask the employee if he or she is suffering from influenza-like symptoms such as fever or chills and a sore throat.[12] The employer must treat such information as a confidential medical record consistent with the ADA.

Significantly, if the employer obtains objective evidence from the CDC or state or local public health authorities that the H1N1 influenza pandemic is significantly more severe and widespread than in the spring and summer of 2009, then the H1N1 virus could be considered a “direct threat” to the health and safety of others in the workplace.[13] If this were to occur, the employer could require the sick employee to stay home and would be able to make further disability-related inquiries based on a reasonable belief supported by objective evidence that the severe form of pandemic influenza poses a direct threat to the workplace. In making the “direct threat” assessment, “employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”[14]

If an employee, absent any medical inquiry from the employer, voluntarily discloses to the employer that he or she has a specific medical condition or disability that puts him or her at increased risk of complications from the H1N1 virus, the employer should, at that point, engage in an interactive process to identify a potential accommodation pursuant to the ADA. With the recent amendments to the ADA, it is likely that a medical condition that puts an employee at increased risk of complications from H1N1 influenza will now qualify as a disability. The employer must, however, be sure to treat the information the employee discloses about his or her medical condition as confidential.

Fitness for Duty Certificates
Employers may require employees who have been sick with the H1N1 virus to provide a doctor’s note or fitness for duty certificate upon their return to the workplace. That said, the CDC has recommended that employers not require doctor’s notes for employees who have been out with the H1N1 virus, because the CDC believes that doctors will be inundated with requests for notes at a time when they are especially busy treating patients. Although the CDC’s recommendation is based on practical considerations, employers need to weigh the risks of failing to require a doctor’s note. Requiring such a note before allowing employees to return to work helps to show that the employer is taking reasonable steps to protect the health and safety of its employees and clients. Indeed, the CDC has stated that individuals contracting H1N1 continue to be contagious for up to seven days after illness onset. For that reason, requiring doctor’s clearance in order for an employee to return to work would seem to be a prudent way of ensuring that an employee who has been out with H1N1 does not return too soon and possibly infect others in the workplace. If the employer chooses to require a doctor’s note, that requirement should be specified in the employer’s leave policy and should be applied uniformly to all communicable disease outbreaks, not just H1N1 influenza.

If, however, the employer chooses to follow the CDC’s recommendation and not require a doctor’s note, then the employer could nonetheless require that an employee who has contracted a communicable disease such as H1N1 stay out of work for a specified number of days that is sufficient to ensure that the employee is symptom free and not contagious on returning to work.

In the event of a severe flu outbreak, as determined by the flu’s impact on the employer’s workplace or by information received from public health officials, employers may wish to encourage telecommuting as a means of preventing the spread of disease. Indeed, certain employees may need to work from home if, for example, they have children whose school is closed due to an H1N1 outbreak or if they have compromised immune systems that make them more susceptible to the H1N1 flu.[15] In the latter situation, the EEOC’s guidance suggests that teleworking may be a reasonable accommodation under the ADA. Thus, assuming the employee is able to perform the essential functions of his or her job from home and it does not result in undue hardship to the employer, employers will need to consider telecommuting as a reasonable accommodation for such employees.

To determine whether a particular job is suitable for a telecommuting program, the employer must identify the essential job functions and assess whether they can be performed from home. Although some less significant duties may need to be eliminated or reassigned, an employer is under no obligation to accommodate an employee’s disability by eliminating essential job functions that cannot be performed from home. The following are among the factors to be considered when determining whether it is feasible for an employee to work from home:

  • employee supervision
  • equipment or tools that cannot be facilitated at home
  • whether there is a need for face-to-face interaction with other employees, clients, customers, etc.
  • need to access documents located in the workplace
  • confidentiality
  • safety concerns (i.e., potential OSHA issues)

If telecommuting is deemed to be a viable option, companies should be careful to make sure that employees classified as nonexempt under the Fair Labor Standards Act (FLSA) keep an accurate account of their hours. Indeed, employers have faced wage-and-hour lawsuits, including class action lawsuits under the FLSA brought by nonexempt employees who claimed that they were not compensated for all hours worked at home or at other locations away from the employer’s workplace.[16]

Flu Vaccines
Flu vaccines are another potential way of controlling the spread of H1N1 influenza. Indeed, in certain workplaces—such as hospitals, nursing homes, and other healthcare facilities where employees come into direct contact with people who have, or are especially susceptible to complications from, H1N1 influenza—employers (or state and local governments) have mandated flu shots for their employees. Any employer who makes vaccination mandatory must, consistent with the ADA, be willing to waive the requirement for employees whose health conditions put them at risk of complications from obtaining a flu vaccine. In addition, pursuant to Title VII, employers will need to make exceptions for employees whose sincerely held religious beliefs would prevent them from getting the vaccine. Short of mandating flu shots, employers may simply wish to encourage employees to obtain vaccinations and provide them with information from the CDC regarding the benefits of getting the vaccine.

In short, the H1N1 virus raises many thorny employment law issues for in-house and outside counsel to grapple with. However, by being proactive and having a plan in place to address the impact of the H1N1 virus on the workplace, companies can be prepared to minimize the potential disruption to the workplace that could occur if H1N1 causes a high rate of absence from work. Employers must also, in attempting to protect the health and safety of the workplace, be sure to safeguard the confidentiality of medical information and to make reasonable accommodations for employees who are at increased risk of complications from H1N1 influenza. Indeed, employers will need to be careful in navigating the uncharted territory of dealing with a pandemic such as H1N1.

Keywords: H1N1, flu, vaccine, liability, employer safety obligations, workplace safety

This article appears in the forthcoming Winter 2010 issue of In-House Litigator, the newsletter of the Committee on Corporate Counsel.

Darryl G. McCallum is with Shawe & Rosenthal, LLP, in Baltimore, Maryland. He currently cochairs the Labor and Employment Subcommittee of the Committee on Corporate Counsel in the American Bar Associationís Section of Litigation.


End Notes

  1. Dr. Margaret Chan, Director-General of the World Health Organization, World Now at the Start of 2009 Influenza Pandemic.
  2. U.S. Centers for Disease Control and Prevention, CDC Health Alert Network Info Service Package: Updated Pediatric Antiviral Dosing Syringe and Compounding Information for 2009 H1N1 and Seasonal Flu.
  3. U.S. Centers for Disease Control and Prevention, Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season [PDF] (Aug. 19, 2009).
  4. See U.S. Dep't of Health and Human Services, FLU.gov, Business Planning.
  5. 29 U.S.C. § 654, 5(a)(1).
  6. U.S. Depít of Labor, Occupational Safety and Health Admin., Guidance on Preparing Workplaces for an Influenza Pandemic, www.osha.gov/Publications/OSHA3327pandemic.pdf.
  7. Depít of Homeland Security, .Planning for 2009 H1N1 Influenza: A Preparedness Guide for Small Business [PDF].
  8. Id.
  9. Equal Employment Opportunity Commission (EEOC), Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, at 2 (Oct. 5, 2009).
  10. Id. at 5.
  11. See www.eeoc.gov/facts/pandemic_flu.html.
  12. EEOC, Pandemic Preparedness, supra note 3, at 6.
  13. The EEOC’s regulations set forth four factors to be considered in determining whether an individual poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r).
  14. EEOC, Pandemic Preparedness, supra note 3.
  15. If, however, an employee needed to stay home to care for a child who was sick with the H1N1 flu, then, assuming that the employee met the eligibility requirements of the Family and Medical Leave Act (FMLA), the H1N1 virus would most likely be viewed as a serious health condition, thereby making the employee’s absence protected by the FMLA. An employee who takes FMLA leave may not be required to perform any work, including working from home, during his or her leave.
  16. Sheri Qualters, Telecommuters Are Suing Employers, Nat'l L.J., Dec. 11, 2006 (2006 ALM Properties, Inc.).


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