Employers may have legal obligations to sick employees, law firm says

HOUSTON In light of the current concerns over swine flu, employers may have legal obligations to limit worksite exposure to the virus, which could include keeping employees suspected of having the flu home and requiring medical certification that the employee is not contagious before allowing them to return to the workplace, the law firm of Epstein Becker & Green stated in a press release Friday.

“Employers often encourage sick workers to come to work, and sick workers often want to come,” stated David Barron, an attorney at Epstein Becker & Green. “However, when it comes to a pandemic, this type of reaction could spread illness and create devastating economic and medical havoc.”

Employers may want to keep employees home who have recently been to Mexico — or have been otherwise exposed — until it is conclusive that they are not infected, Barron said. “This is perfectly lawful and, in fact, employers have a legal responsibility under federal safety laws to provide a safe and disease-free workplace.”

Barron said that many clients have asked about the legality of testing employees who exhibit symptoms in the workplace: “An employer has a right to require fitness for duty testing if an employee could pose a safety risk to him or her self or to others – this means that an employer could require a medical certification that an employee exhibiting flu-like symptoms is not contagious before allowing re-entry into the workplace.”

While ensuring worksite safety is an employer's responsibility, employers can require employees not to wear facemasks, the law firm stated.

“If an employee who is not sick comes to work in a mask, the employer may decide that this image is not good for business and could scare off customers,” Barron said. “In that situation, an employer could require the employee to remove the mask or place the employee on leave until they are comfortable working in the employer’s desired uniform.”