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August 15, 2011
Contagious Disease in the Workplace--What You Can Do

Let’s say you are told that an employee has a contagious disease. He has also told all of his co-workers, and the supervisor tells you these workers are worried and feel at risk. Now you are worried about endangering these employees, as well as following all the laws that are involved. What can you do?

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There are a couple of things to consider in this situation, says Joan Farrell, J.D., BLR® legal editor. First, under OSHA and corresponding state laws, employers are required to maintain a safe and healthy workplace for their employees.

This may mean placing employees with a communicable disease on a mandatory medical leave.

Furthermore, under OSHA, an employee may refuse to work with a co-worker when that co-worker has a communicable disease. Normally, this belief must be reasonable in order for the employee to be protected by OSHA.

If there is evidence that the employee may pose a risk to the health of others in the workplace, the employer can ask the employee to provide medical certification regarding his or her ability to safely work, citing the need for assessment of risk to co-workers based on the contagious nature of the disease.

One note of caution, however— there should be objective evidence supporting the need for the certification. It would be sufficient if the employer has observed symptoms indicating that the employee may have a medical condition that will impair his or her ability to perform essential job functions or will pose a direct threat.

The employer may want to check with the state department of public health for advice on this issue.

Remember that an employee’s medical condition is confidential, and, even if the employee has voluntarily disclosed information to co-workers, reasonable precautions must be taken by the employer to ensure that it limits disclosure of information regarding the health of a specific employee only to those persons with a need to know.

Second, under the Americans with Disabilities Act, Equal Employment Opportunity Commission regulations permit an employer to require that an individual not pose a direct threat to the health and safety of the individual or others in the workplace (29 CFR 1630.2(r); (Chevron USA Inc. v. Echazabal, 122 S.Ct. 2045 (2002)).

In that case, Echazabal, the applicant, had hepatitis C and was denied employment at a Chevron oil refinery because the liver-toxic chemicals in the environment were perceived by Chevron to be a direct threat to Echazabal’s health.

The U.S. Supreme Court held that a direct threat means a significant risk of substantial harm and must be based on:

  • A reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence; and
  • An individualized assessment of the individual’s present ability to perform the essential functions of the job.

If an applicant or employee with a disability poses a direct threat to the health or safety of himself or herself or others, the employer must consider whether the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation. An employer cannot fire or refuse to hire an individual because of a slightly increased risk of harm to themselves or others, or because of a speculative or remote risk.

Therefore, it may be reasonable to ascertain precisely what the risks of the disease are and whether the employee poses a substantial risk of harm to himself or others in his current medical state.

Your company may wish to consult with your state disease control agency for guidance regarding whether the disease is contagious in its current state, etc.

Based on the information received from the agency, your company may consider providing information to the workforce about the disease to help dispel any unfounded fears.

Your company may also want to adopt a policy such as this:

Contagious Disease Policy

This company seeks to maintain a healthy workplace by appropriately protecting the health and well-being of all employees.

This company is also committed to compliance with all applicable federal and state laws.

An employee is required to report any exposure to a contagious disease that might pose a direct threat to health or safety in the workplace. An employee who fails to do so is subject to discipline, up to and including discharge.

The company may remove or reassign an infected or contagious employee if a secondary infection would pose a higher than usual risk to the employee, co-workers, or others.

The company may require the employee to take a medical leave of absence, to undergo a fitness-for-duty examination, to provide a fitness-for-duty certificate from a physician, or to state the risk of exposure in the workplace with regard to his or her contagious illness.

Supervisors will instruct employees about any special precautions necessary in individual work areas.

An employee concerned about being infected with a contagious disease while in the workplace should convey this concern to his or her supervisor. An employee who refuses to work with or perform services for a person known or suspected to have a contagious disease that does not present a current direct threat in the workplace is subject to discipline, up to and including discharge.

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