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	EMPLOYMENT LAW UPDATE: Pandemics, Earthquakes, And Other Emergencies: Move Your Contingency Plan From The “To Do” List To The “Done” List Employment/Labor  Emergencies in the office, community, and the world – from an event of violence, a threatened or actual flu pandemic, an earthquake, or weather-related problems – can have a direct impact on employees that range from expressions of concern, absenteeism, to the inability to work. Thus, proactive employers should take the time to review and update their preparedness plans to ensure continued operations and workplace safety. A calm, rational response from the employer can go a long way to addressing employee concerns. >View our Emergency Planning Checklist When facing an emergency, the first step is to promptly but calmly gather accurate and timely public health information about the problem, its extent, and likely impact on a company’s employees. This may vary from location to location, so be prepared to have different levels of responses. Sources for this information include the Centers for Disease Control and its website, www.cdc.gov, OSHA and its website, www.osha.gov, the World Health Organization and its website, www.who.int, and state and local government websites. It is also advisable to have a list of community medical experts – in advance of need! Emergencies that potentially impact the health of employees and/or their families pose special challenges for employers. Having current information and realistic plans are essential. For example, there is excellent information about preparing for a pandemic flu, including answers to questions that employers often have regarding how to handle specific employment situations, on www.pandemicflu.gov. Furthermore, employers must confront numerous employment laws when formulating a plan, including: Non-Discrimination Laws Title VII prohibits discrimination and harassment against applicants and employees on the basis of race, ethnicity, and national origin. Some states, like California, provide broader protection and prohibit discrimination and harassment on the basis of an actual or perceived characteristic as well as the individual’s association with another person who has the actual or is perceived to have a characteristic. The EEOC was quick to point out on its website, www.eeoc.gov, that during the swine flu scare, Title VII prohibited discrimination and harassment against Mexicans. However, no law prohibits an employer from treating essential/critical employees differently than other employees as long as it is done in a way that does not use a characteristic as the deciding factor in a discriminatory way under non-discrimination laws. Examples of permissible differences in treatment could include, for example, providing transportation to and from work for essential/critical employees, or giving them preference for protective or other supplies that are limited in quantity. The Americans with Disabilities Act (“ADA”) protects and applicants and employees from disability discrimination. Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual actually has a disability. This law (and the law of many states) restricts when and how an employer may request health information from applicants and employees, even when it involves an emergency that the employer believes may threaten the health of an individual or others in the workplace. The ADA prohibits all disability-related inquiries and medical examinations, even if related to the job, prior to an offer of employment. After an applicant is given a conditional job offer, but before the applicant starts work, an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. After employment begins, an employer can only make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity. The ADA does not prohibit an employer from surveying its workforce to gather personal information needed for preparation for pandemic or other health-threatening events, as long as the questions are broadly worded and are not limited to disability-related inquiries. An inquiry would not be disability-related, for example, if it identified non-medical reasons for absence during a pandemic (e.g., school closures or restricted public transportation) on an equal footing with medical reasons (e.g., chronic illnesses or symptoms of the currently occurring or threatened pandemic). The EEOC has an ADA-compliant pre-pandemic employee survey on its website at www.eeoc.gov/facts/h1n1_flu.html. The ADA also does not prohibit an employer from requiring its employees to adopt infection-control practices, such as wearing protective equipment, regular hand-washing, coughing and sneezing etiquette, tissue usage and disposal. Similarly, the ADA does not prohibit an employer from disciplining an employee who fails to follow company directives designed to minimize the spread of illnesses. The ADA does not prohibit an employer from requiring a doctor’s note, a medical examination, or a time period during which the employee has been symptom-free, before it allows an employee who has been out due to a contagious illness to return to work. Specifically, the ADA allows such actions where the employer has a reasonable belief – based on objective evidence – that the employee’s present medical condition would impair his/her ability to perform essential job functions with or without reasonable accommodation, or that the employee would pose a direct threat (i.e., a significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace. Under the FMLA (discussed at more length, below), the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work; however, employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. Furthermore, before requiring such a certification, the employer should consider what it will do if, due to overloaded public health services, large numbers of or critical employees cannot get such certifications quickly, thus preventing them from returning to work. The ADA also does not prohibit an employer from encouraging or requiring employees to work from an alternate location, as long as the employer does not single out employees either to work from an alternate location or to continue to report to the regular worksite based on consideration of a characteristic prohibited by law. The ADA does, however, prohibit an employer from requiring an applicant (pre-offer) or a current employee to answer questions about their health, presence of symptoms, or submit to a medical examination or questioning on a generalized or random basis in the absence of a relationship to the job and/or business necessity. During a pandemic, it does not appear that the ADA prohibits an employer from requiring an employee to disclose whether the employee has been exposed to the pandemic, including exposure through family members and associates. However, treating an employee differently due to a family member’s or associate’s disability is prohibited by the ADA. However, it would prevent an employer from obtaining medical information about employees to help determine and plan who may be at greater risk of contracting the illness. The ADA also requires reasonable accommodations. Thus, for example, an applicant or employee with a disability may require an accommodation where the employer requires the use of protective devices (e.g., non-latex gloves, gowns designed for individuals who use wheelchairs). The ADA may also require an employer to provide accommodations to an employee with a disability if circumstances outside of the workplace make it more difficult for the employee to get to work (e.g., modified work hours where a lack of public transportation prevents full or timely attendance). The employer must provide these accommodations unless to do so would constitute undue hardship. If an accommodation that was already being made is not available (e.g., the usual sign language interpreter is not available due to illness), the employer should explore alternative available accommodations, as long as it does not impose an undue hardship. Medical Privacy Laws The ADA requires an employer to treat any medical information (including any voluntarily disclosed by an employee) as a confidential medical record that can only be shared on a limited “need to know” basis. Many states also have restrictions on what medical information about an applicant or employee can be disseminated to others. Leave of Absence Laws and Policies Many (but certainly not all) employers are covered by leave of absence laws such as the Family and Medical Leave Act (“FMLA”) that provides certain job protections for an employee who is unable to work on account of a serious health condition or on account to caring for a family member who has a serious health condition. The employer should be familiar with its coverage and obligations under these laws, and its right to request medical certification that the absence was one covered by the law and that employee is then able to return to work. For example, under the FMLA, an employer may require certification from a health care professional confirming the need for the leave. The FMLA does not authorize an employee who does not have a serious health condition, or who is not caring for a family member with a serious health condition, to be absent simply as a precaution to avoid getting the illness. However, OSHA may require an employer to provide certain protections (or provide job protection for an employee who refuses to come to work) depending on the reasonableness of the threat of exposure, and whether the employer has taken action to ensure that such exposure is substantially limited. Many states have additional laws regarding leaves of absence. An employer should also review and, where appropriate, modify its own policies regarding absences during an emergency or pandemic. An employer is generally able to send an employee home where the employee is endangering the safety or welfare of the employee or others in the workplace. However, an employer who does so should carefully consider the impact on morale if the employee is not paid for this mandatory time off, or if the mandatory time off implicates an absenteeism policy that results in discipline. Furthermore, if the employee is exempt under wage and hour laws, the employer may have to pay full salary in order to maintain the employee’s exempt status. Providing Protective Supplies An employer is required to provide a workplace free from hazards that are likely to cause death or physical harm. However, the ability of an employee to sue for a failure to meet this obligation will vary widely, depending upon the nature of the danger and the jurisdiction. In many cases, the employee’s exclusive remedy will be through the workers’ compensation system. Nevertheless, the employer should consider in advance what kind of protective supplies and procedures should be in place and available. There are commonly-known procedures for avoiding the spread of dangerous illnesses in any location, such as measures to avoid direct exposure to blood. Depending upon the nature of the danger, controls might include barriers/sneeze guards, minimizing face-to-face contact, promoting personal hygiene measures (e.g., posting signs about washing hands), and gloves, respirators, and gowns. The employer should consider in advance what kinds of things it may need or decide to provide its employees. All employers hope that emergencies bypass their business, and many are lucky in that regard. However, all too often those who are affected by an emergency find they are at a significant disadvantage in dealing with it because “emergency preparedness” was always on the “to do” list – but never done! ------- This Alert is published as a service to our clients and friends. It is intended for informational purposes only and is not intended to constitute advertising, solicitation or legal advice. ©2009 Berger Kahn, A Law Corporation. All Rights Reserved. Back
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