Here's what happened: Last week, my son's school was closed down because of an H1N1 outbreak there. A colleague's daughter also attends that school. Neither child has any flu symptoms, luckily. My colleague and I are also symptom-free. I'm assuming that if we were going to get sick, we already would have, since the incubation period is past.
Nevertheless, my crazy boss sent my colleague and me home on "indefinite leave." When we asked why, he said he was doing it "as a precaution." Both my banished coworker and I are out of sick days now, so we're losing pay for no good reason. Is this legal? --Hale and Hearty
Dear H & H: Alas, just because something seems wacky doesn't mean it's illegal. Clearly your boss has overreacted, says Tal Marnin, an employment attorney at White & Case in New York City who specializes in quandaries like this.
Government agencies, including the Equal Employment Opportunity Commission and the Centers for Disease Control, have issued guidelines for employers on dealing with H1N1, Marnin notes, and nobody is advocating sending employees home "as a precaution" even if their kids (unlike yours) actually are sick.
But here's the rub: Because the dominant principle of U.S. employment law is "employment at will," companies do have the legal right to send you packing for any reason they choose, no matter how silly it seems.
An exception would be if there were a violation of public policy, i.e., sex discrimination, race discrimination, and so on, Marnin says.
Talkback: How has H1N1 affected your workplace? Leave your comments at the bottom of this story.
"An employer can't, for example, send the mothers of the students at that school home but not the fathers, or vice versa," he explains. "Nor can an employer send, say, all the Hispanic parents home but not employees of other races. Everyone in the same circumstances has to be treated alike."
The current flu outbreak has given rise to a delicate legal balancing act. On one hand, companies are responsible for maintaining a safe workplace and making sure the show goes on. On the other hand, the Americans with Disabilities Act (ADA) and a plethora of privacy laws limit the steps companies can take to control the spread of illness.
A sampling of what employers may legally do:
Ask about symptoms. If someone is coughing or comes to work with a fever, chills, or a sore throat, for instance, the boss is allowed to ask whether the employee has H1N1. "The employer may not, however, repeat the employee's answer to anyone," Marnin says. "Whatever the employee says is legally the same as a confidential medical record."
Inquire about specific flu symptoms if an employee calls in sick. "Employers have legitimate reasons for wanting to know if H1N1 has spread among their employees," Marnin says. "But again, an individual employee's medical condition is confidential."
Send employees homeif they show flu-like symptoms. "Studies show that one sick person infects 10 others in an office," Marnin notes. "The CDC is recommending that employers send flu sufferers home to protect co-workers."
Require employees to get vaccinated. The ADA prohibits companies from requiring medical exams, but "a vaccine is not considered an examination," Marnin says. "So they can compel you to get vaccinated -- as long as state law allows it and it's not prohibited by a union contract."
However, requiring vaccinations presents other problems. "Aside from the shortage of vaccines, your company could incur liability if you have an adverse reaction," Marnin says. "So the EEOC and the CDC are now telling employers to encourage, but not require, employees to get vaccinated."
A couple of things employers are legally barred from doing:
Taking your temperature at work. This is considered an examination under the ADA. It's out of bounds for disabled and non-disabled employees alike.
Asking whether you have any medical conditions that might make you more susceptible to serious complications from the flu. Such conditions include pregnancy and asthma, both off-limits.
For planning purposes, however, "it's okay to ask employees whether they know of any reason why they might have to be absent for an extended period in the event of a flu outbreak -- whether it's a medical condition, child-care concerns, or anything else," Marnin says. "The catch is, employees have to be informed in writing that they are not to give a reason for their response, just answer yes or no."
Of course, none of this applies to your weird situation. Call your boss and point out that you (and your fellow exile from the office) are both still flu-free and would like to return to work. If that falls on deaf ears, it's time to start looking for another job. Good luck.
Talkback: Is your employer worried about a flu outbreak? Are you or your co-workers taking any special precautions? Do the measures go too far or not far enough? Tell us on Facebook, below.
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