For most employers, proactive thinking on employment law issues means putting proper procedures in place to handle issues like discrimination, harassment claims, or a potential benefits coverage dispute. In such instances the legal requirements are known, the issues are identifiable, and the solutions can be straightforward. But an emerging workplace issue is outside the scope of many proactive employment policies: how to handle a serious, widespread outbreak of a contagious disease like H1N1 influenza. The potential workplace concerns from a significant H1N1 outbreak are substantial. No employer can be sure whether, when or how hard it will be hit, but they must be prepared.

Many questions arise concerning applicable state and federal laws when U.S. employers make personnel or policy decisions in flu-related situations. That is equally the case with federal and provincial employment law requirements that govern Canadian employers.

Levels of concern
There are two levels of concern for any employer in flu (including H1N1) preparedness, the most urgent of which is limiting the spread of seasonal and H1N1 flu and maintaining business continuity if employees are taken ill. Web sites for the U.S. Department of Health and the Public Health Agency of Canada provide guidance to employers on this aspect.

The second&#8212and more complex&#8212concern involves employee and employer rights and responsibilities. There are many similarities among employers’ obligations in both countries, but there are also some differences in respect of the right to refuse to work and the leave provisions that employees can utilize.

Vaccinations
In most workplaces, employees cannot be required to get flu shots. Unless there is a specific law or regulation authorizing mandatory vaccinations, employers may face substantial liability under state and federal laws, such as those prohibiting disability and religious discrimination, by requiring employees to get flu shots. For example, ordering employees to get flu shots can violate the Americans with Disabilities Act (ADA) because it may force employees to disclose medical conditions that could produce a severe reaction between the vaccine and a medication the employee is taking for his or her disability.

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Voluntary vaccination programs are acceptable, but employers should be cautious when offering incentives to employees to participate. The EEOC has said that in order to be truly voluntary, a wellness program must not penalize employees who do not participate. Any incentive program must be carefully designed to avoid imposing what amounts to a penalty against those who choose to opt-out. Canadian law is no different as employers cannot legally require an employee to get a vaccination.

Disability
Employees who come to work sick or with flu symptoms or who appear to develop flu symptoms during the work day can and should be sent home to protect the workforce. Such an action is not disability-related and therefore does not implicate the ADA. Employers intending to do so should follow a consistent practice with respect to all employees to avoid discrimination claims. Preparing a policy in advance and clearly communicating that policy to all employees can help avoid claims of disparate treatment down the road. In Ontario, during the 2003 SARS outbreak, the Ontario Human Rights Commission introduced a policy to treat SARS as a disability which arguably offered workers greater protection under the Human Rights Code (Ontario).

Refusal to work: U.S. and Canada
Under the Occupational Safety and Health Act (OSHA), the circumstances under which an employee has the right to refuse work because of perceived hazard to the employee are very limited. Employees have a legally protected right to refuse to perform a job assignment only if

• they have a reasonable and good faith belief;
• that their work assignment would put them in real danger of death or serious injury;
• they have asked their employer to address and eliminate the hazard and this has not occurred, and
• there is insufficient time, due to the urgency of the situation, to have the hazard eliminated by contacting OSHA and initiating an OSHA inspection.