Law Office of Lori D. Ecker

Getting sick can sometimes cause far more problems with your employer than you might imagine. Can you be fired for getting sick, or forced to stay home when a family member is sick? What do you do if you contract a serious contagious illness? What can employers do when there is an identified health risk or pandemic in the news, like swine flu, Ebola, or measles? It is important for workers and employers alike to know what employment actions are lawful in the face of serious illnesses, and how individuals and companies can protect themselves when infectious diseases are going around. For more information about infectious diseases and the workplace see below:

1. I caught the flu. Can my employer fire me just because I am sick?
2. Do I have to call my employer if I will miss work due to being sick with the flu?
3. Can my employer fire me for not getting myself or my child a flu shot or vaccination?
4. How can I avoid getting sick at work? How can I prevent giving co-workers my cold?
5. I have been hearing a lot in the news about infectious diseases such as Zika, Ebola, and Measles. What are they?
6. If I have an infectious disease and have to miss work, am I protected?
7. Can my employer force me to stay home from work if I, or one of my family members, contracts an infectious disease?
8. If my employer forces me to stay home from work due to a fear of spreading an infectious disease just because a family member is ill, will that count as part of the 12 weeks leave under FMLA?
9. Can employers discriminate against workers that just emigrated from a nation were a specific infectious disease is prevalent, due to a fear of that infectious disease?
10. Is my employer allowed to require employees to adopt infection control practices to combat an infectious disease?
11. Does my employer have a duty to protect me from an infectious disease at work?
12. Can my employer force me to supply personal safety equipment to prevent the spread of disease?
13. Is my employer allowed to track whether I or my family members have contracted an infectious disease?
14. Can my potential employer require me to undergo a medical examination after being hired, but before I start work to determine if I have been exposed to an infectious disease?
15. Can my employer require me to work from home, when my family and I have no symptoms, in order to prevent the spread of an infectious disease?
16. Is my boss required to grant me leave if I have been quarantined due to an infectious disease?

1. I caught the flu. Can my employer fire me just because I am sick?

   Typically your boss may fire you for missing work due to the flu, but it depends on the seriousness of the flu symptoms you have. If the flu makes you very sick and causes non-typical health complications, it may be illegal for your employer to fire you. The Family and Medical Leave Act (FMLA) protects employees by stating that certain employers may not fire employees for missing 12 weeks or less of work due to serious illness. While it is very rare for courts to prevent employers from firing employees due to the flu, courts have granted FMLA protection to employees that caught the flu and had severe reactions. To determine if the flu counts as an FMLA covered condition, certain factors must be met. The most important factor is that your flu must be considered a "serious health condition." The flu may count as a serious health condition if the following occur:

   • It prevents you from being able to complete essential functions of your job for four or more consecutive calendar days;
   • It causes you to visit a healthcare provider at least twice, and the visits must be in person and not over the phone follow-ups;
   • It requires you to receive continued treatment;

   Even if your doctor advises you to stay home for a week, if the other FMLA conditions are not met, the flu is not considered a serious health condition.

2. Do I have to call my employer if I will miss work due to being sick with the flu?

   Yes. While FMLA does protect sick employees, you still must call your employer and follow any call-in procedure your employer has established. However, if your illness is sudden and prevents you from calling your employer immediately, then you may not need call in immediately, so long as you DO call in as soon as reasonably possible. If you fail to do so, you will not be given FMLA's protection.

3. Can my employer fire me for not getting myself or my child a flu shot or vaccination?

   Yes. Generally, your boss may make it a job requirement that you be vaccinated and remove the risk of exposer to infectious disease. If your employer creates such a policies, your employer may fire you for failing to vaccinate yourself or your children. Your employer may assume that having an unvaccinated child could lead to an unreasonable risk that you could catch the flu or another illness, and as a result, your employer is legally allowed to fire you.

   There are some exceptions. The first exception is if you hold a religious objection to shots or vaccines. Another exception is if you have a disability that makes receiving shots or vaccines dangerous. Finally, if you have a pre-existing employment contract or collective bargaining agreement, your employer cannot require you to receive new vaccinations.

   Many employers do not require employees to receive flu shots. Typically only medical employers require them. In fact, most state laws require medical professionals to receive vaccinations and flu shots. For a full list of state-mandated hospital, employment vaccinations check out the CDC's list of requirements.

4. How can I avoid getting sick at work? How can I prevent giving co-workers my cold?

   According to the Centers for Disease Control and Prevention ("CDC"), the best option to avoid the flu is to get the flu shot, and the best way to avoid other infectious diseases is to get the corresponding vaccination. For other contagious illnesses do the following:

   • Avoid close contact with others when you, or they, are sick;
   • Stay at home when you are sick;
   • Cover your mouth and nose with a tissue when you cough or sneeze;
   • Washing your hands often, with soap and water for at least 20 seconds;
   • Avoid touching your eyes, nose or mouth with unwashed hands (this is an important step to avoid catching the flu);
   • Clean and disinfect surfaces and objects at work.

   For more information about stopping the spread of germs at work, refer to the CDC website.

5. I have been hearing a lot in the news about infectious diseases such as Ebola and Measles. What are they?

   Zika

   Zika is a virus spread mostly by the bite of an infected Aedes species mosquito. It can be passed from a pregnant woman to her fetus, causing certain brith defects. At present, there is no vaccine or medicine for Zika. Symptoms of Zika may include fever, rash, headache joint pain, conjunctivitis, and muscle pain, lasting from several days to a week. If you suspect that you may have been affected, a blood or urine test can confirm Zika infection. The CDC advises that you see a doctor or healthcare provider if you develop symptoms.

   To prevent Zika infection, the CDC recommends protecting yourself from mosquito bites. You may do so by using an Environmental Protection Agency (EPA)- registered insect repellant containing one of the active ingredients: DEET, picardin, IR3535, oil of lemon eucalyptus, para-menthane-diol, or 2-undecanone.

   Ebola

   Ebola is a rare and deadly disease that was first discovered in 1976 in the Democratic Republic of the Congo. Some nations have seen a dramatic increase in the numbers of individuals with Ebola. Recently, there have even been a few rare scares of Ebola in the USA.

   To avoid catching Ebola the CDC recommends:

   • Washing your hands with soap or hand sanitizer;
   • Avoid contact with blood and body fluids;
   • Do not handle items that came into contact with infected blood or body fluids;
   • Avoid bats and nonhuman primates, their blood, their fluids, and their raw meat;
   • Avoid funeral rituals that handle bodies of those that died from Ebola;

   For the latest information about Ebola, see the CDC Ebola page.

   Measles

   Measles is a disease that, in the early half of the twentieth century, lead to the hospitalization of 48,000 people and the death of 400 to 500 people per year. In the year 2000, the CDC declared that measles had been eliminated in the USA because it had not been transmitted for 12 consecutive months. This success was attributed to the success of vaccination policies for school-aged children. However, recently, measles has again begun to break out in parts of the USA.

   To avoid catching measles the CDC recommends:

   • Get an MMR vaccination
   • The CDC states that it there is no link between the MMR vaccination and autism
   • Most children have no side effects from the vaccination

   Measles is very contagious. You can catch it by being in a room where someone with measles breathed within the last two hours. Nearly everyone that doesn't have a vaccination will catch measles if they are exposed to the measles virus.

   For more information about Measles see the CDC measles page.

6. If I have an infectious disease and have to miss work, am I protected?

   Under the Family and Medical Leave Act (FMLA), covered employees may take up to 12 weeks of unpaid leave for serious medical conditions. Whether any infectious disease is considered a serious medical condition will depend on the disease and the degree to which it affects you. When there is a fear of a nationwide pandemic, and the spread of a disease makes the news, employers are likely to consider the illness serious medical condition.

7. Can my employer force me to stay home from work if I, or one of my family members, contracts an infectious disease?

   Yes, under the Americans with Disabilities Act (ADA), an employer may force an employee to stay home if the employer believes that the employee will pose a direct threat to the workplace due to having or being exposed to, a serious infectious disease. This includes employees that are still willing and able to work. Many diseases are very infectious. For example, the Measles virus can be caught if you enter a room where an infected individual was located thirty minutes ago. Sometimes the best way an employer can prevent the threat of exposure to all employees is to require one employee to stay home from work.

8. If my employer forces me to stay home from work due to a fear of spreading an infectious disease just because a family member is ill, will that count as part of the 12 weeks leave under FMLA?

   No, if an overly cautious employer forces an employee who does not have an infectious disease to stay home from work, this time cannot be charged against the employee's 12-week entitlement under the FMLA. As a general rule, employers are not allowed to charge employees with FMLA leave when that leave is required by the employer.

9. Can employers discriminate against workers that just emigrated from a nation were a specific infectious disease is prevalent, due to a fear of that infectious disease?

   Employers may not discriminate against an employee based on the employee's nationality. During the swine flu pandemic, the EEOC released a short comment on their website indicating that any discrimination based on nationality, even if based on an honest fear of the swine flu virus, would violate Title VII of the Civil Rights Act of 1964. For more information on discrimination against employees from abroad, see our site's page on immigration status discrimination.

10. Is my employer allowed to require employees to adopt infection control practices to combat an infectious disease?

    Yes. Requiring infection control practices is not only a good idea during a disease pandemic, but also does not implicate any violation of the ADA. Additionally, an employer is allowed to require personal protective equipment designed to combat the spread of an infectious disease. If an employee needs a reasonable accommodation in order to use certain safety equipment (e.g. latex allergy) then an employer must provide it to the employee.

11. Does my employer have a duty to protect me from an infectious disease at work?

    Yes. According to OSHA, the law that requires employers to provide a safe workplace, your employer does have a duty to protect you from recognized hazards. However, there is no specific duty that details what an employer must do to protect you from an infectious disease.

12. Can my employer force me to supply personal safety equipment to prevent the spread of disease?

    No. If your employer has determined that personal protective equipment is required for the worksite, then it is the employer's responsibility to make sure that it is provided at the job site.

13. Is my employer allowed to track whether I or my family members have contracted an infectious disease?

    It depends. Typically employers cannot force you to tell them if you have a disability or a sickness that others are not at risk of catching. However, under the ADA, during a pandemic, an employer may require employees to disclose whether they or their family members have been exposed to an infectious disease.

14. Can my potential employer require me to undergo a medical examination after being hired, but before I start work to determine if I have been exposed to an infectious disease?

    Yes, the ADA does permit potential employers to require medical examinations of entering employees after they have already extended an offer of employment. However, employers cannot administer these medical exams in a discriminatory fashion and must require these medical exams from all new employees in the same job category.

15. Can my employer require me to work from home, when my family and I have no symptoms, in order to prevent the spread of an infectious disease?

    Under the ADA, if there is an outbreak of a serious health concern, then employers are allowed to require employees to work from home. However, employers are not allowed to single out employees to work from home.

16. Is my boss required to grant me leave if I have been quarantined due to an infectious disease?

    Many states do not have laws preventing employers from firing someone who is quarantined by the state, so long as there is no contract or union agreement. However, the following states do have laws that prevent employers from firing any employee or any full-time employee, that is quarantined: Maine, Maryland, New Jersey, New Mexico, South Carolina, and Texas.

    For more information on state laws regarding quarantine, visit http://www.ncsl.org/research/health/state-quarantine-and-isolation-statutes.aspx.

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