Virginia Business Law Blog

As October gains full steam, flu season is getting underway and the H1N1 Flu pandemic is readying for another outbreak.  For individuals, the prevention advice is relatively simple: cough and sneeze into your sleeve, wash your hands frequently, go home if you’re sick and stay there until you’re fever-free for 24 hours.  All very practical for keeping yourself well. 

But how well is your business prepared for the flu?  The Department of Homeland Security has put out information for small business owners, and the Department of Health and Human Services and the Centers for Disease Control have published a good checklist for assessing preparation.

From an employment law perspective, preparation is more than just a good practical idea: it is also a means to avoid violating the FMLA, the ADA, and OSHA.  Flaws in employment policies that are invisible in normal times can quickly be exposed by the stress of a flu outbreak.  This blog post discusses some of those flaws that may be present in a business’s employment policies.

Family Medical Leave Act (FMLA)

An employee may take FMLA leave for a “serious health condition.”  “Serious health condition” does not include mild flu cases, but it does include some more significant cases where the employee has to be treated by a medical care provider.  Because of this distinction, it is particularly important that a business have a rigorous reporting requirement for employees who take sick leave, including the reason for such leave.  This policy will help enable the business to identify those employees who are taking FMLA leave.

Americans with Disabilities Act (ADA)

The ADA limits the inquiries a business may make about its employee’s health and restricts access to any health information that is gathered.  In the context of the flu, a business must consider the ADA when (1) gathering information to anticipate employee absences during flu season and (2) dealing with employees who show symptoms of the flu.  The EEOC has a good publication on the intersection between ADA compliance and the flu.

When gathering information, a business should avoid questions to employees that would only identify persons with disabilities (i.e., in ADA parlance: “disability-related inquiries”).  One method is to ask questions that broadly cover all the reasons why an employee might be absent from the workplace during a flu pandemic, rather than focusing on medical reasons.  Make certain that any questionnaires are reviewed before they are distributed to employees and that all supervisors are careful with the inquiries they make of employees.

When dealing with sick employees, a business must ensure that it does not single out employees with disabilities for particular requirements.  For example, the EEOC asserts that a business may require all sick employees to wear surgical masks or may require particular categories of employees to telework, so long as disabled employees are not discriminated against in the process.  A good practice to avoid accidental discrimination is to have written policies and require all supervisors to follow those policies.

Occupational Safety and Health Act of 1970 (OSHA)

OSHA requires employers to provide “reasonably safe” workplaces.  Safety is generally a non-issue in office environments.  But if a virulent strain of the flu comes into a business’s office, keeping the office “reasonably safe” arguably would require that the business mitigate the risk of the spread of the flu among employees.  The Occupational Safety and Health Administration has posted information on how businesses can help create flu-safe workplace.  To be well-prepared for the flu, a business should incorporate some of these practices into its employment policies.

If you want advice regarding your business’ employment policies, please contact Jessica Kelty, the head of General Counsel, P.C.’s employment law practice group, by email at jkelty@generalcounsellaw.com or by phone at (703) 556-0411.

Employers have long engaged in monitoring employees to help maintain quality standards, protect against untrustworthy employees, and shield the company against potential liability.  Advances in technology have made electronic methods of monitoring easily available and effective.  While federal and Virginia laws do not carve out an explicit right to privacy for employees, employers are not entitled to subject employees to limitless scrutiny.  Employers must understand the legal restrictions on employee monitoring and craft office policies accordingly.

In addition to existing statutory restrictions, under Virginia law there are certain causes of action that employees may rely upon to protect against overzealous employer surveillance: (1) unreasonable intrusion upon the employee’s seclusion, or solitude, or into his private affairs; (2) public disclosure of true, embarrassing private facts about the employee; (3) publicity which places the employee in a false light in the public eye; and (4) misappropriation of employee’s name or likeness for commercial purposes.[*]  The first of these common law torts addresses whether the employee had a reasonable expectation of privacy over the area the company monitored, while the other three deal with how an employer may wrongfully use the information gained during the surveillance.  Thus, even in situations where the employee may not have a reasonable expectation of privacy, an employer must take great care to use the information properly to avoid any repercussions.

One area where monitoring is simply not allowed is the mail.  Under federal law, an employer is not allowed to open and examine an employee’s personal mail.  See 18 U.S.C. § 1702.  However, there are many other areas where an employee may be subject to surveillance, each with different statutory contours as described after the jump.

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