H1N1 at Work

Prepare and educate your employees.

The swine flu has reached Long Island and may worsen next winter. What should local employers do (and not do)?

Consider adopting infection control practices such as regular hand washing and sneezing/coughing etiquette. Where appropriate, require employees to wear protective equipment such as gloves or face masks.

Explore whether telecommuting is workable on a regular or emergency basis. However, businesses should make telecommuting mandatory or available without regard to an employee’s membership in a protected class. For example, do not require only employees of Mexican descent to telecommute.

Encourage employees to stay home if they feel sick, but ensure that paid leave policies are up to date and have been clearly communicated to employees. Apply the policies consistently. Ensure that Family and Medical Leave Act policies have been updated under the 2009 regulations. Employees may need to take FMLA leave if they or a family member contract the virus.

According to recent guidance issued by the EEOC, employers must observe the requirements of the Americans with Disabilities Act when testing employees for the virus.

For example, an employer may test an entering employee for the virus only after a conditional job offer has been made, but before the individual starts work. However, this is permissible only if all entering employees in the same job category are required to test. In other words, employers should not require only Hispanic employees to test (which could amount to race discrimination).

If employees are tested, employers must treat all information about their employees’ health as confidential medical records. They may only share the information in limited circumstances, with supervisors, safety personnel and government officials.

Ellen R. Storch is an employment attorney with the firm Kaufman Dolowich Voluck & Gonzo LLP. Contact her at estorch@nullkdvglaw.com for suggestions or questions about this column.

ellen r. storch, esq.

Ellemn R. Storch is an employment attorney with the firm Kaufman Dolowich Voluck & Gonzo LLP. Contact her at estorch@gdvglaw.com