Just as the AIDS epidemic and the SARS outbreak of 2003 created novel issues for employers in the past, the current spread of H1N1 virus, commonly known as swine flu, is likely to leave employers facing potentially challenging new employment issues. Some employers are already being affected by the outbreak, and employers throughout the United States would be wise to become familiar with the nature of H1N1 virus and the issues it may pose in the workplace.

What Is H1N1 Virus?

H1N1 virus is an influenza virus that, like the regular human seasonal flu viruses, is spread mainly from person to person through airborne transmission and other means. Once infected, a person may be contagious from one day before symptoms develop up to seven days after the person gets sick. Children may be contagious for longer periods of time. The Centers for Disease Control and Prevention (“CDC”) is presently not sure how severe H1N1 virus will be in the general population or whether certain groups of people, such as children, pregnant women, or the elderly, are at a greater risk of complications from H1N1 infections. The CDC is currently studying whether some people are more at risk from infection than others and whether some people might have a natural immunity to the H1N1 virus.

The CDC has recommended that persons in the United States avoid all nonessential trips to Mexico, which has reported 590 confirmed cases of H1N1 virus, including twenty-five deaths. The World Health Organization (“WHO”) considers it “prudent for people who are ill to delay international travel and for people developing symptoms following international travel to seek medical attention.” Neither the CDC nor the WHO is recommending that people avoid domestic travel in the United States.

Employment Issues Related to H1N1 Virus

Because H1N1 virus can be transmitted to employees in the course of performing their jobs, employers should view the virus from a workplace-safety-and-health perspective. Employers may have legal obligations under the Occupational Safety and Health Act and its state counterparts to take affirmative steps to protect employees from work-related exposure to H1N1 virus. The Occupational Safety and Health Act and its regulations do not contain provisions specifically addressing the risks associated with H1N1 virus. However, the Act’s General Duty Clause requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 665(a)(1). Employers can be cited for violation of the General Duty Clause if they do not take reasonable steps to abate or address such a recognized hazard. One step employers may take to minimize the risk of a General Duty Clause citation relating to H1N1 virus is to postpone business travel to Mexico and other areas with a high incidence rate of H1N1 infection until the spread of the virus has been brought under control. Depending on the nature of the business and the likelihood that employees may come into contact with persons who have been infected with H1N1 virus, additional measures may be advisable.

The CDC has recently provided guidance that can assist employers in complying with the General Duty Clause with regard to H1N1 virus. The CDC guidelines relate directly to airline flight crews traveling to areas known to have a significant concentration of H1N1-virus cases, but provide suggestions that can be applied in other work environments in which there is a heightened risk of transmission of H1N1 virus. The CDC recommends that flight crews traveling to affected areas wash their hands with soap and water, especially after coughing and sneezing, avoid touching their eyes, nose, or mouth, and cover their mouth and nose when coughing or sneezing. Flight crews are also advised to stay home from work and limit contact with others if they become sick. The CDC’s guidelines further provide that people who are sick should not fly and passengers who develop H1N1-virus symptoms should wear a surgical mask. Flight crew members who assist sick passengers should wear a surgical mask at a minimum, but use of a respirator is a preferred precaution. Additionally, flight crew members and ground personnel who may have been exposed to H1N1 virus should monitor their health for seven days after the exposure. If H1N1 symptoms develop, the flight crew member should seek medical care, not report to work, notify his or her employer, inform his or her doctor about possible exposure, not travel, limit contact with others, and wear a surgical mask in public places.

In an effort to meet their obligations under the Occupational Safety and Health Act, employers may want to require employees who exhibit H1N1-virus symptoms to submit to a medical examination to determine whether the employees pose a threat to the safety of other employees in the workplace. The Occupational Safety and Health Act is not the only employment law, however, that employers should consider in this situation. Disability-discrimination laws, for example, may affect an employer’s course of action in reacting to the risk of H1N1-virus transmission in work-related settings. Generally, the Americans with Disabilities Act (“ADA”) restricts an employer’s right to require employees to submit to medical examinations. However, the ADA permits employers to require medical examinations of employees when the examination is “job-related and consistent with business necessity.” A medical examination is likely to meet that standard when the employer has a reasonable belief that “an employee will pose a direct threat due to a medical condition.” Before requiring a medical examination because of H1N1-virus concerns, employers should consider whether the employee’s present physical condition poses a risk of substantial harm to others.

Some employers may also seek to protect their workers by requiring employees with H1N1-virus symptoms, employees who have recently traveled to H1N1-virus-affected areas, and employees who have had contact with H1N1-virus-infected individuals to stay home from work. Before taking this step, however, employers should consider whether the employee is disabled under the ADA or a state disability-discrimination statute -- laws that generally prohibit segregating qualified individuals with a disability because of their disability. Under the ADA, an individual has a “disability” if the person has a physical or mental impairment that substantially limits one or more major life activity, has a record of such an impairment, or is regarded as having a disability. Because H1N1 virus is a transitory condition of relatively short duration, it ordinarily will not last long enough to substantially limit any major life activity and would probably not qualify as a disability under the ADA, even if an employer merely regards an employee who has potentially been exposed to H1N1 virus as having the virus. Some state disability-discrimination statutes, however, define “disability” much more broadly than the ADA and could cover H1N1 virus. In these states, employers should determine whether the disability-discrimination statute contains an exception that allows employers to base employment actions on a disability that poses a direct threat to the safety or health of others in the workplace. Employers are cautioned to seek legal advice before taking any adverse action against an employee because of H1N1 virus. If an employer determines that it may lawfully require an employee to stay at home because of H1N1-virus concerns and does not pay the employee during the time he or she is not allowed to work, the employee may be able to receive unemployment compensation benefits. Generally, unemployment compensation benefits are available to individuals who are unemployed through no fault of their own and who are available for work and willing to work.

One of the most significant responses to the current H1N1 situation in the United States has been the closing of schools where suspected or verified cases of infection have been reported. Many employers, therefore, may face time-off requests from their employees to care for children because of school closings. Employers should be aware that such absences are not covered by the Family and Medical Leave Act (“FMLA”), unless the employee’s child actually has a serious health condition. Thus, absences to care for a healthy child who is home because of a school closing should not be counted against an employee’s leave entitlement under the FMLA or similar state laws. These absences also raise wage-and-hour issues under the Fair Labor Standards Act and similar state laws. In the absence of a contract providing otherwise, employers are not required to pay hourly paid, non-exempt employees for such absences, but employers should consult legal counsel to determine whether deductions can be made from the salaries of non-exempt salaried employees for these absences. With respect to salaried exempt employees, employers may make deductions for full-day absences for childcare purposes when the employee performs no work whatsoever on the day of absence, but the employer risks losing the employee’s exempt status if it makes deductions for partial-day absences in this situation.

Although, as mentioned above, absences to care for a healthy child during a school closing are not covered by the Family and Medical Leave Act, employee absences to care for a child, spouse, or parent who has H1N1 virus and absences caused by an employee’s own H1N1 virus probably will qualify as protected leave under the FMLA, as H1N1 virus is likely to qualify as a serious health condition under that law. Employers faced with such absences should determine whether the absent employees are eligible for leave under the FMLA and may require the employees needing time off because of an actual case of H1N1 virus to provide medical certification from a health care provider supporting the need for leave.

Employers should also be aware that under some circumstances, contracting the H1N1 virus may be a compensable injury under workers’ compensation laws. Generally, an injury is compensable under a workers’ compensation law if the injury arises out of and in the course of employment. Health care workers who become infected with H1N1 virus as a result of patient contact will almost certainly have compensable claims. Employees who are exposed to the virus on company business travel, in company-provided transportation, such as a van, or at the office may also have compensable claims. On the other hand, employees that are exposed to the virus on public transportation while commuting to work likely will not have compensable claims.

HIPAA Privacy Implications

When determining how to respond to H1N1-virus issues, employers must also consider the HIPAA Privacy Rule. Generally, the HIPAA Privacy Rule limits a health plan's use and/or disclosure of a participant's protected health information except as authorized by the participant or as permitted in the situations described in the HIPAA Privacy Rule. However, the HIPAA Privacy Rule does not protect health information that is not transmitted or maintained by the health plan (or another covered entity). For example, if an employee with H1N1 virus submits to his or her supervisor a request for leave under the Family and Medical Leave Act and attaches the results of his or her flu screening to the request, the information would not be protected under the HIPAA Privacy Rule because the supervisor is receiving that information on behalf of the employer, not the health plan sponsored by the employer. The key to complying with the HIPAA Privacy Rule is to ensure that any H1N1-virus response plan does not involve or rely on protected health information that is obtained from the health plan. The following three examples discuss the potential application of the HIPAA Privacy Rule in this context.

  • Scenario One: An employer provides generalized information to all employees regarding H1N1 virus. This approach does not raise concerns under the HIPAA Privacy Rule because the communication does not involve the use and/or disclosure of protected health information which is maintained by the employer’s health plan.  
  • Scenario Two: Employees who are identified by the employer as being at risk of contracting the H1N1 virus based on travel schedules must be screened by a health care provider for the H1N1 virus, and the results must be provided to the employer. If the employee obtains the results and provides them to the employer, the HIPAA Privacy Rule is not implicated. However, if the health care provider is required to disclose the results directly to the employer, the employee must execute a HIPAA authorization.
  • Scenario Three: Employees may voluntarily be tested for H1N1 virus, and the employer will pay or reimburse the employee for the full cost of the test. This does not implicate the HIPAA Privacy Rule because the results of the test are not disclosed to the employer. Further, the employer can pay/reimburse the full cost of the test on a tax-free basis under Internal Revenue Code Sections 105/106.  

In addition, once an employer acquires information indicating that an employee has H1N1 virus, the employer should refrain from disclosing the employee’s health status to others in a way that would identify the employee, as such disclosure may expose the employer to state-law invasion-of-privacy claims and violate the ADA’s provisions requiring the confidentiality of medical information.

Practical Implications

Employers should respond with common sense to individualized conditions created by their operations, work environment, and geographic location. For example,

  • Business travel to Mexico should be postponed, if possible, until the H1N1-virus situation has been controlled;
  • Under appropriate circumstances, employers should consider asking employees and other individuals in the workplace to disclose nonbusiness travel to H1N1-affected areas or contact with H1N1 patients;
  • Employers may require employees who exhibit H1N1-virus symptoms to obtain medical certification to ensure the safety of other employees in the workplace; and
  • Employers should consider allowing an employee to work from home if there is a concern that the employee is infected with the H1N1 virus.

In dealing with H1N1 issues, employers must use caution to avoid violating federal and state employment laws, particularly those governing the use of employee medical information and prohibiting discrimination on the basis of an actual or perceived disability. Employers should also be sure that all similarly situated employees are being treated the same and that employees of a particular ethnicity or national origin that is associated with H1N1 virus are not scrutinized and treated adversely because of their ethnicity or national origin. Finally, employers with employees represented by a union should consider their duty to bargain if any contemplated action, such as requiring employees exposed to H1N1 virus to stay home from work, affects the employees’ terms and conditions of employment.