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In Flu Season, Employment Lawyers Catch Questions
The Recorder
November 12, 2009
As the H1N1 virus continues to spread nationally, employment lawyers are getting a lot of calls from clients.
Littler Mendelson has received "thousands" of inquiries on the topic, said San Francisco partner Garry Mathiason. "We've been hearing extensively about it and have been counseling clients for the last six months with regard to [H1N1] and how it fits into the general pattern of communicable diseases."
Steven Berliner, a partner at Liebert Cassidy Whitmore in Los Angeles, said his firm has been getting multiple calls a day on H1N1 counseling, and sent out its latest special bulletin on the issue to clients on Wednesday.
Primarily, the questions coming in are about how to maintain a safe workplace without stepping on the rights of apparently sick employees.
One hot-button issue, then, is how to combat so-called "presenteeism," or ill employees coming to work.
"A lot of employees, particularly in this economy, want to show up for work and don't want to burn through their sick time," said Brian Ashe, a partner in Seyfarth Shaw's San Francisco office.
At the same time, Berliner said, "If you have someone with a communicable disease that is spread by breathing on people, and you're allowing that to continue, you're not creating a safe workplace."
Lawyers say they're suggesting their clients send home workers who say they have H1N1. But they're advising against jumping to conclusions based on symptoms. One measure Berliner says is acceptable: asking a sick employee to bring in a doctor's note saying he or she is safe to be in the workplace.
Employment lawyers are also fielding calls about a piece of proposed federal legislation, H.R. 3991, that would require employers to provide up to five days of paid sick leave for workers with contagious illnesses such as H1N1. "I'm very suspicious of the underlying motives of that bill, and whether it's really an effort to move in the direction of mandatory sick leave as opposed to really deal with the issue of this current epidemic," Mathiason said.
Whether to notify other employees when there's a confirmed case of swine flu is also a popular question. "If there's been real exposure, the notification may be a good idea," said Mathiason, whose firm, among other measures, gave a bottle of hand sanitizer to every attorney and support person after a recent confirmed case of H1N1 there. "The problem is that it tends to make people more concerned than they need to be."
