eTrends - Legal Considerations for Employers Faced with Potential Pandemic Influenza Outbreaks in the Workplace

As instances of reported H1N1 Influenza infections in the United States increase, many employers are faced with making decisions about what to do in the event of an outbreak in the workplace. The following article provides a number of practical issues that should be considered in dealing with the threat of pandemic influenza outbreaks in the workplace. While dealing with such potential outbreaks, employers also would be well-advised to keep in mind a number of employment laws that may impact their decisions about workplace practices, as set forth below.

Legal Issues to Consider While Dealing with Pandemic Influenza

Occupational Safety and Health Act

Section 5(a)(1) of the Occupational Safety and Health Act (“OSHA”) requires an employer to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .” To comply with this legal requirement, employers would be well-advised to rely upon guidance regarding the pandemic influenza preparedness that has been issued by OSHA, CDC, and the National Institute for Occupational Safety and Health (“NIOSH”). This obligation to provide a safe workplace may require employers to remove infected individuals from the workplace to prevent the spread of the illness—as advised by the CDC—even if the employees wish to continue working. Please see the publications from OSHA and the CDC's Swine Flu web sites for more information.

Family and Medical Leave Act

Depending on the severity of an employee’s reaction to an influenza infection, he or she may be eligible for up to 12 weeks of unpaid leave under the federal Family and Medical Leave Act, if he or she worked at least 1,250 hours in the preceding 12-month period. As noted above, per the CDC’s guidelines, employers may require employees that are suspected to have pandemic influenza or that have been exposed to pandemic influenza to leave the workplace and/or stay at home, and employers may be able to count such absences against an eligible employee’s FMLA leave. As a reminder, employees only will be eligible if they work in a location in which the employer employs at least 50 employees within 75 miles.

Americans with Disabilities Act

As a general rule, employers with 15 or more employees are prohibited from making certain health-related inquires to their employees under the Americans with Disabilities Act (“ADA”). However, such inquires are job-related and consistent with business necessity when based on objective evidence that an employee may pose a direct threat to his or her co-workers due to a medical condition. The CDC has advised that, during a pandemic, employers may ask employees about their potential exposures to pandemic influenza and whether they may have a higher risk of infection (e.g. a compromised immune system).

Although it is unlikely that a temporary infection of influenza would qualify an employee for protection under the Americans with Disabilities Act (“ADA”), the employer may be required to make reasonable accommodations if he or she develops long-term impairments as a result of the illness.

Genetic Information Non-Discrimination Act

As employers implement pandemic influenza preparedness plans, it is possible that they may receive information about employees’ susceptibility to viral infections, such as the pandemic influenza.  In complying with the Genetic Information Non-Discrimination Act, employers that receive genetic information from their employees must be careful to maintain the employees’ genetic information separately from other employment-related files and to treat the genetic information as confidential.

Practical Issues to Consider While Dealing with Pandemic Influenza

  • Provide gloves, close-fitting masks, anti-bacterial wipes, and hand disinfectants to employees, and install hand sanitizers throughout the buildings.
  • Circulate electronic information about hygienic practices in the workplace.
  • Consider policies to modify the frequency and type of face-to-face contact among and between employees and customers.
  • Consider policies for employee compensation and sick leave absences that are unique to a pandemic, such as non-punitive and liberal sick leave.
  • Consider policies for flexible worksite and work hours that would provide for telecommuting and/or staggered shifts.
  • Consider limiting employee’s travel to Mexico and other locations that the Centers for Disease Control (“CDC”) have identified as having high rates of transmission.
  • Consider mandating that employees that have been suspected of having pandemic influenza or that have been exposed to pandemic influenza leave the workplace and/or stay at home, in accordance with guidance from the CDC.
  • Consider policies that prohibit individuals other than employees and essential personnel from entering the workplace.

For more practical issues to consider, please see the U.S. Department of Health and Human Services' Pandemic Influenza Preparedness Checklist and Toolkit.

For more information, please contact Rosemary G. Kenyon or Catherine E. Kimberley

Employment, Labor and Human Resources

Employee Benefits and Compensation

Environmental Health and Safety

Government Contracting


  • Alicia A. Gilleskie
  • Frederick R. Zufelt

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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when credit is given to Smith Anderson.
©Copyright Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. 2012


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