By Eric D. Disharoon, Esq. and Oren D. Saltzman, Esq.
Despite a decline in the number of U.S. swine flu cases, the national Centers for Disease Control (CDC) warned that a third wave of swine flu could occur this spring. Employers are obligated by federal and state occupational safety and health regulations to provide a safe workplace.
While employers may want to keep contagious workers out of the workplace, federal and state disability laws may limit their ability to ask employees about their medical condition or require them to take medical exams.
Generally, federal and state leave laws require employers to provide leave to employees due to sickness. Employees who get sick while on the job may be entitled to worker’s compensation benefits if the sickness resulted from another employee’s spreading their contagious illness in the workplace.
Under the Americans with Disabilities Act (“ADA”), a person has a “disability” if he/she has a physical/mental impairment substantially limiting a major life activity (such as hearing, sight, or speech, among others). It is unclear whether swine flu meets this definition of disability as this pandemic only recently became so widespread.
However, the ADA prohibits covered employers (all employers with 15+ employees) from excluding individuals with disabilities from the workplace for health or safety reasons unless the individual poses a “direct threat” (a significant risk of substantial harm even with reasonable accommodation). It also requires reasonable accommodation for individuals with disabilities. And, it regulates employers’ disability-related inquiries and medical examinations for all applicants and employees.
Read more: Employment Law and the Swine Flu (and other contagious illnesses)




