October 14, 2009

The Swine Flu, the ADA and Lawyers on the Prowl

You might not think that the H1N1 virus, commonly know as swine flu, has anything to do with the ADA. Well, you clearly have not been reading Nation's Restaurant News. Lisa Jennings writes a complex and cautionary tale for restaurant managers, warning them to back off from asking obviously sick employees whether they have the swine flu. Somehow, this advice does not sit well with me - or with anyone else who might sit down for a meal in a restaurant.

Attorneys with nothing else to do have raised the issue that swine flu may be a disability under the ADA. After all, we have all been warned of a potential pandemic and there have been a relatively small number of fatalities associated with the virus. But does that mean that every case of swine flu is a disability? Is the ADA's recent recognition of shorter term disabilities meant to include a week of sore throats, coughing and fever?

Jennings quotes Virginia attorney Jonathan Mook, who notes that the ADA sets limits for when and how employers may inquire about medical conditions. He concedes that swine flu may not technically be a disability, but "it could be perceived as disabling because of the myths about it. If an employer asks specifically about swine flu, for example, and later is perceived as not wanting to work near the employee, even after the worker is no longer contagious, there may be grounds for a discrimination complaint."

Are employers really supposed to worry about that?

Fortunately, the article recommends that employers focus on symptoms:

In communities where an outbreak occurs, it is a good idea to include in every preshift meeting questions about specific symptoms related to the flu. It's also OK for employers to ask whether employees have fevers, sore throats, coughs or intestinal ills, so long as they don't ask for a diagnosis [emphasis added].

In addition, attorneys say, employers are permitted to send employees home if they're showing symptoms of the flu and are allowed to ask them to stay home for three to seven days, as recommended by the CDC in Atlanta--or as long as necessary to complete treatment, such as antiviral medication.

So the attorneys say that it's ok to send people home for flu-like symptoms, as long as you don't suggest that you are doing so because you think they have swine flu.

A Note from the Doctor and FMLA
To complicate matters even further, a specific diagnosis of swine flu is unlikely, as most people with flu-like symptoms are instructed to stay home and employ the usual remedies. We are not to go to hospitals and clinics unless symptoms are unusually severe. The CDC does not want to overwhelm emergency rooms and local clinics with needless requests for documentation.

On the other hand, if there is a formal diagnosis of swine flu, the employee may be eligible for FMLA leave, as this particular flu would be considered a "serious medical condition" - as opposed to regular flu, which might also kill you but is not viewed as a part of a world-wide pandemic. Go figure.

I hope that a fear of (preposterous) litigation does not result in employers keeping sick people at work. No one with flu-like symptoms belongs in the workplace. I have never sued anyone, but if my scrambled eggs are delivered by a waitperson with a runny nose, flushed skin, an expectorant cough and a raspy voice, I won't eat a thing. And if there happens to be a lawyer in the next booth, I surely would be tempted to strike up a conversation.

Postscript: A note of thanks to my esteemed colleague Jennifer Christian, CEO of Webility, who somehow finds the time to read National Restaurant News.

| 1 Comment

1 Comment

Jon, I agree with the synopsis - no one with flu-like symptoms belongs in the workplace. But I disagree with the focus. I don't believe that the primary reason that sick workers will be staying at work is because employers are afraid of a lawsuit. I think the primary reason that sick workers are at work is because of bad sick leave policies. It is unfair, and moreover it is bad public health, that the service industries (where employees are most likely to come in contact with the general public) have such poor sick leave policies. Many don't have sick leave at all. The ones that do have such bureaucratic and restrictive sick leave procedures that it is next to impossible to actually stay home sick. People don't come to work sick because they enjoy it; they come to work sick because they can't afford not to.

My husband works for a large retail corporation as a cashiering "person in charge" (a non-management manager). He is lucky enough to have sick leave, but is very rarely able to use it. To qualify for sick pay he has to have a doctors note AND is not eligible for sick leave until the 3rd scheduled day off. Luckily we are duel income, so he can afford to take the occasional unpaid day to deal with a cold or flu virus. But not many are that lucky.

I understand that employers are concerned about costs and also concerned about abuse of sick pay. But I would think that those employers who are at risk of having their valued employees out sick for 3 to 7 days because of some virus they caught from their "scrambled eggs delivered by a waitperson with a runny nose, flushed skin, an expectorant cough and a raspy voice" I would think they would be more proactive in making sure these people can afford to stay home.


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This page contains a single entry by Jon Coppelman published on October 14, 2009 11:02 AM.

Focus on fraud was the previous entry in this blog.

Health Wonk Review; also, the crazed chimp case and workers comp is the next entry in this blog.

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