With the measles epidemic raging, what should an employer do?

A legal guide to navigate the fight against measles in the workplace

By Robert G. Brody and Katherine M. Bogard

As we all know, Rockland County is plagued by a measles epidemic. The legal question we are considering is: "What should an employer do? Like most law responses, "it's complicated."

Generally, various federal and New York state laws, such as the 1996 Law on Portability and Responsibility for Health Insurance ("HIPAA"), the Law on Non- Discrimination of Genetic Information ("GINA") and amendments to the ADA's 2008 Act ("ADAAA") provides employees with certain protections of privacy at work. With some exceptions for some health professionals, these federal and federal laws prohibit employers from asking employees whether they have been vaccinated against measles. However, if you learn that an employee has been diagnosed with measles, the employer must or may eventually need to follow certain steps.

1. Take appropriate precautions

Contact the Rockland County Health Department and ask them how to prevent the spread of measles. Measles is very contagious. It's so contagious that if a person is infected with it, up to 90% of the people who surround him will also be 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 has measles, until two o'clock after this person is gone. Therefore, it is important that employers take this outbreak seriously and take the common sense measures that are required to prevent the spread. For example, encourage good handwashing practices and ensure that the disinfectant spray and antibacterial soap are well stored and exposed for your employees. Document the steps you take once you have verified that they are appropriate.

2. Remind sick employee of available leave options

Encourage the sick employee to stay away if he does not feel well, as you would with another illness. You must also remind the employee of the different leave options that may be applicable to him, such as the Family Holiday Leave (FMLA) Act. If so, help them deal with any requests for leave to expedite their departure. The FMLA offers employees of employers with at least 50 employees twelve weeks of unpaid leave over a twelve-month period for a serious health problem. New York State paid family leave (NYPFL) will not apply in this situation as the leave does not cover the care of the employee's serious condition. However, if the employee's child had measles, the FMLA and PFL in New York could apply in addition to other laws.

3. Can I force my employee to go home?

You can absolutely encourage sick employees to return home – baduming this is your usual practice. And if they refuse, you can probably force them to go home, baduming this is your usual practice. Determine if this is what you would do if an employee had a cold or seizure. According to some, it would discriminate against a disabled person or considered to have a disability under federal and state laws. Confirm your strategy with a lawyer who is competent in labor law and employment.

4. Maintain confidentiality

Needless to tell the rest of your workforce that the sick employee is missing because he or she has measles. But, if you ask them, just say that they went home sick should go. However, it would be prudent to tell employees that measles is in your area and that they should take precautions and consult a doctor if they have any concerns. However, even if you do not identify the employee concerned, you must be on the lookout for retaliation claims. If your workforce is relatively small, it can be easy to badume that the missing employee has measles. Employees can then retaliate against that employee upon return to work because of anger or fear of being exposed to measles. This can not be allowed in particular.

In the second part of this series, we will discuss the adaptations that may be involved when an employee refuses to be vaccinated against measles or when his child has measles. In the third part, we will discuss in more detail how to detect a reprisal claim and how to prevent it.

Robert G. Brody is the founder and managing member of the law firm Brody and Associates, LLC. Katherine M. Bogard is a partner of the firm. The firm represents management in all areas of labor, employment and benefits law.