Originally published in the Rockland County Business Journal, April 2019.
As we all know, Rockland County is in the throes of a measles outbreak. The legal question we’re contemplating is “What should an employer do? Like most answers when it pertains to the law, “It’s complicated.”
As a general rule, various New York state and federal laws such as the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Genetic Information Nondiscrimination Act (“GINA”), and the ADA Amendments of Act of 2008 (“ADAAA”) provide employees some privacy protections at work. With certain exceptions for some healthcare professionals, these state and federal laws prohibit employers from asking employees if they have been vaccinated for measles. However, if you learn an employee has been diagnosed with measles, there are a few steps the employer should or possibly must take.
- Take Appropriate Precautions
Contact the Rockland County Health Department and talk to them about how to prevent the spread of measles. Measles is highly contagious. It is so contagious that if one person has it, up to 90% of the people around him or her will also become infected if they are not protected. According to the Rockland County Health Department, you can even catch measles just by being in a room where a person with measles has been, up to two hours after that person has left. Therefore, it is important employers take this outbreak seriously and take appropriate common sense precautions to prevent the spread. For instance, encourage good hand washing practices and keep disinfectant spray and anti-bacterial soap well stocked and displayed for your employees. Document the steps you are taking once you have verified they are appropriate.
- Remind Sick Employee About Available Leave Options
Encourage the ill employee to take time off if they are not feeling well, just as you would with any other illness. You should also remind the employee about various leave options that may apply to them such as the Family Medical Leave Act (“FMLA”). If applicable, help them process any leave request to expedite their departure. The FMLA provides employees of employers with fifty or more employees, twelve weeks of unpaid leave in a twelve month period for a serious health condition. New York State Paid Family Leave (NYPFL) will not apply in this circumstance since the leave does not cover care of the employee’s own serious health condition. However, if the employee’s child had the measles, FMLA and New York PFL might both apply in addition to other laws.
- Can I Force My Employee to Go Home?
You absolutely can encourage sick employees to go home – assuming that is your normal practice. And if they refuse, you probably can force them to go home, again assuming this is your normal practice. Consider if this is what you would do if an employee had a raging cold or flu. There is an argument that this is discrimination against someone with or being regarding as having a disability under state and federal law. Confirm your strategy with competent Labor and Employment law counsel.
- Maintain Confidentiality
No need to tell the rest of your workforce the sick employee is out sick because he or she has the measles. But, if asked, simply saying they went home sick should be fine. However, it would be prudent to tell employees that measles is in your area and they should take precautions and see a doctor if they have any concerns. However, even if you don’t identify the affected employee, you must be on the lookout for retaliation claims. If your workforce is relatively small, it may be easy to surmise the missing employee has measles. Employees may then retaliate against that employee upon the employee’s return to work out of anger or fear for being exposed to the measles. This cannot be allowed especially.
In Part two of this series, we will discuss the accommodations which may be implicated when an employee refuses to be vaccinated for measles or when their child is suffering from measles. In Part three, we will more fully discuss how to spot a retaliation claim and what to do to prevent them.
