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Legal Considerations when dealing with Infectious Disease Outbreaks in the Workplace

December 14, 2015

By Alan C. Blanco, Esq.

An infectious disease outbreak in the workplace presents some complex problems. Obviously, employers want to maintain a safe and healthy workplace yet legal and medical privacy issues can complicate a company’s response.  Business considerations, legal duties, and human nature can pull in conflicting directions.

OSHA requires employers to furnish a place of employment which free from “recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”   So, there is a duty to respond if the employer is made aware of a serious infectious disease which could be spread at work.

ADA (Americans with Disabilities Act) considerations require that employers safeguard the privacy of medical information about employees.  The ADA also requires that employers not discriminate against an employee with a disability.  If severe enough, an infectious disease may be a disability under the ADA.  The ADA also protects employees an employer perceives as disabled.

Employers must also not defame employees or intrude into employee privacy.  An employer risks a defamation lawsuit if the employer says false (i.e. incorrect things about an employee’s medical information.  If information is true but improperly obtained or circulated, an employer might be sued for invasion of privacy.  If supervisors and managers are gossiping that John Smith has an infectious disease, whether true or false, they could be opening the company to a lawsuit.

An employer’s first reaction might be to stem gossip among employees by imposing discipline.  Not so fast; under the Labor Management Relations Act, internal complaints about health and safety issues by non-supervisory employees may be protected concerted activity – the employees have a right to talk about their safety at work.  The Labor Management Relations Act (which protects union activity by employees) also protects employees the rights of non-union activity to act together, and discussing health and safety concerns can be protected.

While it may seem that dealing with a sick employee should be simple, but is, in actuality, a true minefield. So what is a responsible employer to do?  The employer must recognize there is no one-size-fits-all solution. Every incident will vary.  The employer should evaluate the information and the risk; in serious situations consultation with both medical and legal professionals is appropriate to develop and implement a proper response plan.

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