Is Your Business Inoculated Against Swine Flu? Part 4 – Sending Sick Employees Home
There’s nothing like sitting in your work cubicle, in the dead of winter and during the middle of a swine flu epidemic, while listening to your nearest coworker coughing her heart out. Sympathy can quickly turn to resentment as jumpy employees around her worry that every cough is sending battalions of pesky microbes marching off in their direction.
Unless sick employees stay home, those microbes could decimate a formerly healthy workforce — just as business is starting to pick up around the globe. Can employers make such employees stay away so that an injury to one doesn’t become an injury to all?
Some employers — with hospitals leading the charge — have tried to avoid this question altogether by mandating that their employees receive a swine flu vaccine. While unionized employees would normally need to work out such an arrangement with the employee union, and while public sector workers might be able to raise constitutional or privacy issues that would limit mandatory vaccination, non-unionized employers in the private sector can require that their employees be vaccinated, as long as they make exceptions for employees who have verifiable medical or religious objections to vaccination.
The vaccination issue aside, employers can require that sick employee stay home, as long as those employers abide by certain legal rules of the road. The most important of these rules relates to the Americans with Disabilities Act (“the ADA”), which regulates the circumstances under which employers can pose medical questions to employees and also protects employees against discrimination on the basis of a disability.
Unless an employer plans to immediately send an employee home upon hearing the first sniffle — which is clearly impractical — employees at work who appear to be sick will need to be questioned in order to determine whether they simply have a common cold or, conversely, something more severe and therefore potentially requiring a more drastic response. The stakes are high: Not only does a sick workforce affect morale and productivity, but it also could give rise to worker compensation claims from employees who can prove that they contracted swine flu at work.
The ADA ordinarily prohibits employers from asking medical questions of employees if those questions are likely to elicit information regarding a disability, meaning a long term or permanent condition which substantially limits an employee. Swine flu generally isn’t going to be a “disability,” because the impairment it causes will be temporary. It is therefore OK to ask employees if they’re experiencing flu-like symptoms such as fever, flu, and a sore throat. And it’s OK to take the cautious approach and send these employees home when they indicate that they are.
What an employer generally can not do is ask its employees whether they have particular medical conditions which place them at greater risk if they contract swine flu. Those employees’ medical conditions might well themselves be disabilities, and questions regarding those conditions are therefore governed by the ADA’s rules restricting circumstances under which employees can be asked medical questions about a disability.
An employer also cannot just send home sections of the workforce that are especially vulnerable because of swine flu, such as disabled employees with other medical conditions or pregnant women — even if the employer is taking such steps because of a well-meaning attempt to protect its people.
When such particularly vulnerable employees request special treatment — asking to stay home because of their increased risk from exposure to swine flu — it’s a different matter.
Disabled employees making such a request are asking for an accommodation under the ADA, and employers must assess whether they can reasonably accommodate such a request — by, for example, allowing the disabled employee to work from home or temporarily transfer. While pregnant employees are usually not considered disabled and therefore not legally entitled to reasonable accommodations, an employer might wish to grant their requests to work from home too, assuming that such home-based work is feasible.
Sending employees home raises questions as to when and whether such employees must be paid. Allowing employees to work from home raises additional questions as to how such home-based employees should be paid. We will address both of these questions in our fifth and concluding installment of this swine flu series.
