H1N1 (Swine Flu): An Employer’s Guide to Avoiding Liability

By Griffin S. Dunham

The H1N1 virus has resulted in worldwide concern, and we may only be witnessing the beginning. The "swine flu," as it is more commonly referred, is only the fourth influenza pandemic ever experienced. The public health concerns range from the unknowns of how long it will last, its treatability, and the number of people that will be affected. The practical, everyday concerns include who will contract it, how severe the particular strain will be, and how much work will be missed.

The purpose of this article is to help employers in the "proactive and preventative" category and educate the audience on various employment issues related to H1N1. Although no general assembly has legislated statutes or regulations to specifically address H1N1, current laws are implicated. Specifically, these include the Americans with Disabilities Act (ADA) and the Occupational Safety and Health Act (OSHA). In addition, the Family Medical Leave Act (FMLA), workers' compensation laws, certain employee benefits statutes, and various state statutes confer additional obligations on employers and rights to employees.

Governments and corporations alike are concerned about the health of their workforce and the economic impact of losing a significant amount of productivity. Unfortunately, less concern is being focused on the legal impact of a potential massive employee H1N1outbreak. This may be understandable considering exactly zero lawsuits are known to be filed against an employer related to H1N1. But, make no mistake about it that this will change. The question is which employers will be proactive and preventative, and which will be reluctant to adapt and therefore be susceptible to the wrong end of litigation.

I.  Americans with Disabilities Act

On November 5, 2009, the World Health Organization (WHO) declared H1N1 to be the world's "most dominant flu." The Equal Employment Opportunity Commission's (EEOC) recent guidance is therefore relevant and timely. It has decided the ADA applies to H1N1 in three major ways:

First, the ADA regulates employers' disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health and safety reasons unless they pose a "direct threat" (i.e. a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

The U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, at http://www.eeoc.gov/facts/pandemic_flu.html (last modified Oct. 9, 2009) (hereinafter "Pandemic Preparedness Guidance").

A. Disability-related inquiries and medical examinations.

Imagine an employee walks into work coughing, sneezing, and exhibiting other symptoms of H1N1. The employer believes the employee may have H1N1. Can the employee be legally questioned about H1N1 or asked to submit to a medical test? Answering these questions involves an analysis of a few definitions. A disability-related inquiry is one that is likely to elicit information about a disability; i.e., a substantial limitation of a major life activity. See 42 U.S.C. § 12112(d). Equal Employment Opportunity Comm'n, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, § B of "General Principles" (2000), at http://www.eeoc.gov/policy/docs/guidance-inquiries.html#4. A medical examination is a test to determine an individual's physical or mental impairments or health. Id. § B.2 of "General Principles." Asking an employee about seasonal flu or cold symptoms or directing medical examinations for such ailments is not a disability-related inquiry. Currently, H1N1 receives the same treatment from the EEOC. See Pandemic Preparedness Guidance, § II(B). Therefore, such inquiries and examinations remain compliant with the ADA. However, whether H1N1 continues to receive the same treatment as seasonal flu can change rapidly as CDC reports and public health assessments become public. Id.

Some public health officials believe H1N1 will soon not be similarly situated with the seasonal flu or the common cold. This is important because once there becomes a distinction, employer inquiries and medical examinations related to H1N1 will become disability-related under the ADA. Once this occurs, employers will not be allowed to make such inquiries or direct medical examinations unless they are "job-related" and consistent with business necessity. Id. § II(C); see Conroy v. New York State Dep't of Corr. Servs., 33 F.3d 88, 94-95 (2d Cir. 2003). This is satisfied if the employer has a reasonable belief that an employee's ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat, i.e., "a significant risk of substantial harm to the health or safety of others that cannot be reduced by reasonable accommodation" due to a medical condition.

As of the publishing date of this article, the EEOC does not consider H1N1 a direct threat. Until it does, H1N1 is not given a different legal analysis than typical seasonal flu. However, it is important for every employer to stay informed of the positions of the CDC, local public health authorities, and any additional guidance provided by the EEOC before inquiring of an employee about H1N1 or directing a medical examination.

B. Excluding employees with a disability from the workplace.

Employers cannot exclude a disabled person from the workplace when a reasonable accommodation exists, unless that person poses a direct threat on society. However, consistent with the above analysis, an employer is within its rights under the ADA to send an employee home who manifests H1N1 symptoms. The EEOC specifically states:

The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

See Pandemic Preparedness Guidance, § III(B)(5).

Based on this guidance, it is likely that employers have a safe harbor if an employee is sent home after presenting H1N1 symptoms. Before doing so, though, employers should properly document the employee's symptoms to ensure that an objective paper trail exists to justify its decision (this can be as simple as a note to the employee's file).

C. Reasonable accommodations during a pandemic.

Currently, those diagnosed with, or symptomatic of, H1N1 are not disabled, and employers should be careful not to perceive them as such. However, what happens when an employer institutes measures to prevent H1N1, but such measures impact the availability of a disabled employee's reasonable accommodation? For example, how should an employer react when a vision-impaired employee is provided special screen-enhancing equipment in his office, and the employer then orders its workforce to "telework" from home?

The answer is simple: rules surrounding reasonable accommodations are not suspended during a pandemic. Id. § III(B)(12); see also 29 C.F.R. pt. 1630 app. § 1630.2(r). The employer should make the screen-enhancing equipment available to the employee at his new work location. Although the "reasonableness" of any accommodation will be viewed in light of the totality of the circumstances, 29 C.F.R. pt. 1630 app. § 1630.2(o), an employer should be very careful to avoid any belief that a pandemic will allow them to provide fewer accommodations to otherwise discharged employees.

II.  Occupational Safety and Health Act

H1N1 creates a serious safety and health issue to a workforce. Therefore, employers would be remiss to ignore OSHA requirements to institute procedures for protecting employees from being exposed to hazards. Although H1N1 has not been specifically addressed, OSHA contains a General Duty Clause that requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. § 665(a)(1). Violation of this clause can result in employer liability and penalties. Additionally, there may be reporting requirements on the OSHA 300 Log if the employee's contraction of H1N1 is work-related, i.e., the workplace more likely than not caused or contributed to the illness, and results in absence from work, job transfer, or medical treatment.

To help ensure compliance with OSHA, employers should adopt a pandemic policy and circulate this policy to all employees. This policy should be educational on what H1N1 is, how it is transmitted, its symptoms, and how it can be prevented. Employers should not stop with education. To a practical extent, employers should enforce a hand-washing policy, provide antibacterial sanitizer throughout its facilities, encourage the use of surgical masks if appropriate, and direct supervisors to be aware of subordinates health conditions and sick leave allowances. Also, to the extent permitted by the ADA, employers should take advantage of sending symptomatic employees home or requiring employees to submit to diagnostic medical examinations. Finally, employees should be informed that all instituted measures are for their safety and are not intended to serve any purpose other than promoting public health.

III.   Other Considerations

An employer must not believe the potential scope of liability related to H1N1 is limited to the ADA and OSHA. Other laws exist that employers must keep in mind. For example, an H1N1 victim can be entitled to unpaid leave under the Family Medical Leave Act (FMLA), 28 U.S.C § 2601 et seq. The FMLA requires certain employers to grant employees up to a total of 12 workweeks of unpaid leave during any 12-month period for, among other things, the employee's or the family of an employee's serious health condition. Id. § 2612(a). According to the FMLA rules, a serious health condition must involve inpatient care at a medical facility or continued treatment by a health care provider. Id. § 2611(11). For example, if an employee visits a healthcare provider and is prescribed medication or is hospitalized, then the employee qualifies for FMLA protection. This also applies if the employee's spouse, child or parent visits a healthcare provider and is prescribed medication for the condition or is hospitalized. Id. § 2612(a). Although a full H1N1 analysis as it relates to the FMLA is outside the scope of this article, an employer must nonetheless be cognizant that H1N1 may prompt an employee to apply for FMLA leave.

In addition to the FMLA, it is likely only a matter of time before an employee raises a workers' compensation claim against an employer based on exposure to H1N1. Generally, an injury is compensable under a workers' compensation law if the injury arises out of and in the course of the employee's employment. This claim may be difficult to prove, but an employee could make a colorable claim if an employee contracts H1N1 after performing a work-related function with an infected employee. Employers should be especially mindful of employees working together in close quarters and even more vigilantly apply pandemic-prevention measures under these circumstances.

Finally, an employer should consult counsel about any state regulation counterpart to any federal law mentioned in this article, as well as any independent basis for state law liability.

IV.   Conclusion

Whether H1N1 will become a catastrophic pandemic is yet to be seen. But, it is likely that any pandemic will create litigation. The ADA, OSHA, FMLA, and workers' compensation laws are constructed such that an infected employee could conceive of a cause of action by relying upon these statutes. However, a responsible employer will have a formal plan in place that protects the employee to the greatest extent practical. Such a plan would serve the primary purpose of keeping the workforce as healthy as possible under the circumstances. This is not only the right thing to do to protect employees' health and productivity, but is also an exercise in resource-saving preventative law. The fewer employees affected by H1N1, the fewer employees that can raise an H1N1-based claim.

A plan also serves the very practical purpose of developing a contingency strategy. The Department of Labor has recommended pandemic plans to include: designating a coordinator to oversee the plan's implantation; policies to address realities associated with absenteeism, compensation, handling sick employees, etc.; the implementation and administration of "teleworking;" the identification of critical operations and essential functions to support workflow; and education of all employees about H1N1. Following this guidance and keeping in mind the various laws that can serve as the basis for a claim, an employer is on the path to legally survive if the H1N1 pandemic intensifies.