Action Item: Based on the rising number of issues related to highly communicable diseases like measles, mumps, flu, and Ebola, employers should be proactive rather than reactive in preparing and implementing an infectious disease response policy. Remember, when the issue presents itself in the workplace, it usually is at a critical point requiring immediate action and response by the employer.
The Centers for Disease Control and Prevention (“CDC”) announced recently that “[f]rom January 1 to February 6, 2015, 121 people from 17 states and Washington, D.C. were reported to have measles.” While most of these cases are being traced to an outbreak at the Disneyland theme parks in California in mid-December, this is not the only outbreak in recent memory. In 2014, the U.S. had 23 measles outbreaks, one of which affected 383 people in Ohio. The CDC attributes this increase to “more measles cases than usual in some countries to which Americans often travel . . . and therefore more measles cases coming to the U.S., and/or more spreading of measles in U.S. communities with pockets of unvaccinated people.”
Many businesses have already been confronted with the reality of employees being diagnosed with measles and other communicable diseases. For example, it was recently confirmed that a LinkedIn employee who commuted on public transportation to and from work in San Francisco in early February tested positive for measles.
In preparing and responding to measles or any other infectious disease outbreak, employers should stay up-to-date on CDC, federal, state, and local public health guidance and must remain mindful of anti-discrimination laws such as Title VII and the Americans with Disabilities Act (“ADA”) when making employment-based decisions. In addition, employers should facilitate opportunities to educate their employees about how the diseases are spread and how to reduce the risk of infection. Employers may suggest employees are properly vaccinated, and can go so far as to offer free immunization programs at work, but employers outside of the health and child care industries are not likely to require such vaccinations as a condition of employment.
Employers must balance concerns related to a possible outbreak with employee privacy and other legal concerns. For example, measles is an infectious disease that presents early symptoms similar to the common cold. Employers must be thoughtful in any program that would seek to police and ban employees with common symptoms. Employers should foster a culture in which genuinely sick employees can elect to stay home without feeling as though their jobs will be jeopardized. Employers should also consider devising an outbreak operational plan to guide business operations should members of the workforce become sick and unable to work. In developing these policies, employers are encouraged to consult with our Labor and Employment Practice Group to ensure compliance with local, state, and federal laws.