Our employee has recently returned from traveling in an area where there is an illness epidemic. What can we do to address the employee’s exposure and protect our workplace?
Under the federal and California Occupational Safety and Health Act (OSHA), an employer has an obligation to provide a safe and healthy work environment. However, managing illnesses in the workplace implicates a number of medical and privacy concerns that an employer must balance.
Injury/Illness Prevention Plan
Part of an employer’s OSHA obligation to provide a safe and healthy work environment is the creation and implementation of an Injury and Illness Prevention Plan (IIPP). The IIPP should contain a communicable disease policy and procedure that includes employee awareness training regarding diseases, procedures for reporting and addressing symptoms, and procedures for issuing personal protective equipment, if necessary.
Medical Screenings, Exams, Vaccinations
Employers must use caution and should consult with legal counsel before requiring current employees to undergo medical screenings or examinations to test for illnesses.
Under these circumstances, a medical screening or examination can occur only when the employer, based on objective evidence, observes symptoms which indicate that an employee may suffer from a medical condition that impairs that individual’s ability to perform essential job functions or poses a direct threat to the safety of others.
This means that an employee who has returned from a region experiencing an epidemic, but without symptoms, likely cannot be subject to a required medical examination.
If an employee is demonstrating symptoms, you may require the employee to leave the workplace because that individual is a direct threat to the safety of others, and may require the employee to undergo a medical examination to verify that it is safe for the employee to return to work.
For diseases for which there are vaccinations, most employers may not require employees to be vaccinated unless the employer can show that the immunization is job-related and consistent with business necessity.
Even in situations where an employer may require vaccinations, there may be additional religious accommodation issues to explore with legal counsel.
Leaves of Absence
Although most cases of seasonal illnesses do not constitute a “serious medical condition,” complications from an illness may create a serious medical condition that requires the use of available job-protected leave under the federal Family Medical Leave Act and the California Family Rights Act.
Of course, any contraction of an illness is a qualifying reason to use California Paid Sick Leave time.
Maintaining Privacy
As with any issue involving an employee’s health and medical conditions, any information the employer receives must be held private.
When employees inquire about the steps the employer is taking to protect workers from illnesses, the employer needs to prepare an appropriate message that addresses employees’ concerns while also protecting employee privacy.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
