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By: Edward Langhammer, Jr.

Cotkin Law Group

Los Angeles, CA
Recently a client contacted me with an interesting and emergent question, whichwent something like, I have an employee who we believe is sick with the swine flu. What steps should I take right now? After responding to my clients question, I decided that I should send all my clients and friends of the firm this short article concerning some of the steps that employers and employees should consider doing in anticipation of
encountering swine flu in the workplace. As I write this article I note the L.A. Times has a first page story discussing swine flu in the workplace.

It is no secret that the outbreak of swine flu is expected to be of so-called pandemic proportions, meaning a worldwide outbreak, resulting from this new strain of the virus having the ability to spread from person to person, and people might not have any natural immunity to the new strain. The result is the disease would spread rapidly among the population. President Obama has said about the emerging pandemic,
I dont want anybody to be alarmed, but I do want everybody to be prepared.

So what do we do to be prepared? First we should revisit and update our emergency and contingency planning, emergency preparedness plans, communication systems, attendance policies and workplace safety policies. We should review our insurance policies for business interruption coverage. Second, and the focus of this article, are some of the immediate steps that employers and employees need to be aware
of to answer the question posed by my client above, namely, What should I do now?

While not all inclusive, employers and employees should consider the following dos and donts:

  • Maintain General Hygiene in the Workplace Employers and employees should be very diligent about basic hygiene standards, including frequent handwashing, and not coughing into the air but using a tissue or coughing into your sleeve. Employers are wise to disperse among the workplace an instant hand sanitizer that is available over the counter, and of course maintain general cleanliness of workplace.
  • Avoid Unnecessary Staff Meetings Employers and employees should make use of teleconferencing, telephone meetings, and take such other steps as may be reasonable and prudent to minimize the unnecessary exposure of their workforce to assembled masses of employees, which may increase the chance of a mini-pandemic in the workplace. It has always been a prudent practice to avoid unnecessary meetings and to avoid meetings to schedule meetings, but now there is an added potential health benefit for avoiding unnecessary meetings.
  • Get Medical Confirmation from a Sick Employee This area is fraught with challenges. Employees have a right to privacy in their personal health matters. Employees have a right not to be discriminated against or treated differently because of a medical condition or perceived medical condition. Employers should be careful to not violate their employees rights. Employers are not entitled to medical confirmation from an employees health care provider unless such information is authorized by statute or an employers policies or plans. Leave under the Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) provide for medical
    certification. Leave of absence policies, sick leave and time off policies may require medical confirmation from an employee. Employers are not entitled to request an actual diagnosis or actual confirmation that a given employee does or does not have swine flu.
  • Cannot Require Employees to Undergo Medical Test An employer may not require an employee to consent to a medical test for a specific medical diagnosis. It makes little difference to an employer as to whether or not it can confirm any specific diagnosis. Instead, employers should focus on what they can do to minimize exposures in the workplace.
  • Send Home an Employee with Flu Symptoms An employer is allowed to send an employee home if an employee presents with symptoms of swine flu, or other illnesses which may present with similar symptoms. The message here is that the safer approach and the prudent approach by employers is to send an employee home if the employee appears ill and unable to perform their work without risk to the employer. To the extent that employers would ordinarily charge an employees sick leave account,
    paid time off account, or have the employee go off work without pay, employers need to be careful to judiciously exercise sending employees home or for examination, since employees may resent having to use their time off if in fact they are not really sick and are just suffering from a mild cold or have the sniffles. As I write this, Congress is considering legislation called the Emergency Influenza Containment Act, that will guarantee a sick worker up to five sick days per year for businesses with more than fifteen employees. More to come on that as it winds through the legislative process.
  • Require a Medical Release from an Employee Before Allowing Employee to Return to Work An employer may require an employee to
    provide a medical certificate after the employee returns from an illness. Employers should check their specific sick leave and leave of absence plans and FMLA and CFRA leave plans to determine that any release that it would require would be consistent with those policies and plans already in place.
  • Allow Employees to Telecommute/Work From Home Many employers already have in place policies and procedures that allow an
    employee to telecommute and work from home as appropriate. Employers should carefully review their policies and determine if and when employees should be allowed to work from home. Note that requiring employees to stay away from the workplace, because of an employees medical condition, may be problematic for employers and should be used judiciously.
  • Do Not Notify Employees in the Workplace of Another Employees Exposure to Swine Flu Employers generally should not make any
    announcement concerning an employees illness. Such announcement and notification is typically a governmental function and would be in the hands of the appropriate government agency, including public health care agencies on a city, county and/or state level. Employers generally do not have the right to take actions such as announce a quarantine of their workplace. Those policy decisions are reserved to the public authorities, who are charged by law to make and implement such decisions.
  • Avoid Hysteria in the Workplace Employers must be careful to avoid the hysteria that may be produced in the workplace. Employers must be calm and take such actions as reasonably prudent in the workplace to minimize the employees risk of exposure and not get involved in the hysteria.
  • Cut Employees Slack vs. Employers Be Taken Advantage Of We know that there are going to be a great many people affected by swine flu. However, we also suspect that there may be people who view the pandemic as an opportunity or excuse to take advantage of their employers and their coworkers (who may have to work harder to make up for the slacker). How should employers and coworkers deal with such concerns? There is, of course, no easy answer to this, and much will depend on the circumstances then existing. Suffice to say that employers and employees need to be on the alert for people who are truly affected versus those who are just trying to take advantage of an unfortunate situation. Employers and employees may be suffering from very high anxiety and stress levels. Since people deal with stress and anxiety in different ways, it is incumbent upon employers to do what they reasonably can to accommodate its workforce during these tough times, while still trying to have its workforce as productive as possible.
  • Discrimination and Harassment Are Still Forbidden Employers and employees should continue to keep in mind the numerous federal and state laws forbidding discrimination and harassment based on such legally-protected areas as medical condition and perception of medical condition. There are a number of resources available online to assist employers and employees in the further nuts and bolts of dealing with the swine flu issues. For example, the United States Department of Labor, Occupational Health and Safety Administration has recently released its Guidance on Preparing Workplaces for An Influenza Pandemic, which is available at the website at Moreover, the California Department of Public Health has specific information available on its website also, which may be found at

As always, employers should consult with their legal counsel to develop more specific contingency plans and to deal with other emerging issues, including but not limited to, those briefly discussed here. Please contact me directly to discuss in greater detail any issues or concerns on the topic discussed here, or on other matters that may of concern to you at your workplaces.

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