Swine Flu Raises Potential Legal Issues for Employers According to David Barron,
Attorney with Epstein Becker Green Wickliff & Hall

HOUSTON--(BUSINESS WIRE)--With the threat of a global pandemic from “swine flu,” employers are considering how to keep a safe workplace while ensuring day-to-day operations stay smooth and panic doesn’t override good judgment. But employers have legal obligations to employees which they may not be aware of, and should act with care to ensure safety and productivity, according to labor and employment lawyer David Barron.

“Employees who reasonably believe they are being exposed to imminent danger – including contagious disease – may legally refuse to work.”

One initial consideration is whether employees should come into work at all. “Employers often encourage sick workers to come to work, and sick workers often want to come,” said Barron, an attorney at Epstein Becker Green Wickliff and Hall. “However, when it comes to a pandemic, this type of reaction could spread illness and create devastating economic and medical havoc.”

Employers may want to keep employees home who have recently been to Mexico--or otherwise exposed—-until it is conclusive that they are not infected, said Barron. “This is perfectly lawful and, in fact, employers have a legal responsibility under federal safety laws to provide a safe and disease-free workplace.”

Barron said that many clients have asked about the legality of testing employees who exhibit symptoms in the workplace: “An employer has a right to require fitness for duty testing if an employee could pose a safety risk to him or her self or to others – this means that an employer could require a medical certification that an employee exhibiting flu-like symptoms is not contagious before allowing re-entry into the workplace.”

Employees who are sick or who need to care for sick family members may qualify for protected leave, Barron said. The Family and Medical Leave Act applies to any employer with 50 or more employees within a 75 mile radius, and provides 12 weeks of job-protected leave to covered employees who meet eligibility requirements.

Paid time off is the first line of response for sick employees. Since most employers no longer distinguish between various categories of leave for employees, eliminating differences between vacation and sick leave makes good sense during a crisis, for administrative reasons. Barron also noted that “with many schools shutting down, employees will be under great pressure to stay home with children.” He added that “many public health officials have discouraged parents from placing children from quarantined schools into daycare, which will put even more pressure on employer leave policies.”

In the event of an emergency or quarantine, excused time off may be the only option available to employers, short of closing down entirely. Employees who have not become ill or affected by disaster may want to donate their paid time off to other employees, but this can have tax implications and should be strictly managed in accordance with company policy.

The Occupational Health and Safety Act (OSHA) requires employers to provide employees with a safe place to work, according to Barron. “Employees who reasonably believe they are being exposed to imminent danger – including contagious disease – may legally refuse to work.”

In the current climate, many employers are educating employees about recommendations by the Centers for Disease Control and Prevention that people take everyday preventative actions to help stop the spread of germs and prevent respiratory illnesses like the flu.

Barron also said some employees may over-react and this, too, can create issues: “If an employee who is not sick comes to work in a mask, the employer may decide that this image is not good for business and could scare off customers. In that situation, an employer could require the employee to remove the mask or place the employee on leave until they are comfortable working in the employer’s desired uniform.”

“Employers can and should take all reasonable precautions to protect their employees from disease,” said Barron. “Now is the time to understand your organization’s legal options and make sure you stay in good, close communication with your workforce.”

About Epstein Becker & Green, P.C.

Founded in 1973, Epstein Becker & Green, P.C. (www.ebglaw.com) is a law firm with approximately 350 attorneys practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm's size, diversity, and global affiliations allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis.

Epstein Becker Green continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate.