The state of New York recently caused a public furor by ending its religious exemption for vaccinations because of the alarming spread of measles throughout the population. Because of this highly infectious disease, school systems throughout the United States are refusing to allow children to attend class unless they can show they have been vaccinated.
Headlines are full of stories like these about a disease once thought to have been eradicated in this country. Since Jan. 1, there have been 704 confirmed cases of measles in the U.S. and at least nine measles outbreaks (defined as three or more cases) across the country, according to the Centers for Disease Control and Prevention (CDC). These include outbreaks in California, Illinois, New Jersey, New York, Texas and Washington State.
Which raises an obvious question for businesses: What should employers do in the face of this epidemic?
After learning that an employee is diagnosed as having the measles, there are a number of steps any employer can take to help employees protect themselves, according to attorney Bradford Hammock of the law firm of Littler Mendelson PC.
First, contact your local public health department to seek guidance about handling the situation. It can be an important source of information regarding how the disease is transmitted and what steps should be taken to protect the employee diagnosed with measles as well as to protect other potentially exposed employees.
One thing to keep in mind is that employee privacy rights under the Health Insurance Portability and Accountability Act (HIPAA) mandate that employers, medical professionals and health service companies protect the identity of a patient’s health status, Hammock warns
“If you learn that an employee has been diagnosed with measles, you may be tempted to alert the rest of your staff immediately. Don’t!” he cautions. “Not only can this cause an unnecessary panic, but you must also be careful about employee privacy concerns and the information you share.”
He adds that it may be possible that measles can be defined as a “disability” under the federal Americans with Disabilities Act (ADA) and state and local law counterparts to the ADA, especially those jurisdictions with disability definitions that are even broader than the ADA.
Getting the Right Information
Your local public health department also may be able to provide guidance about the need for, and scope and content of, any kind of notification that an employer should make to other workers who may have been exposed. With this disease, communication is vitally important, Hammock stresses.
Measles is highly contagious for those who are not immune to the virus, and it can be spread easily to others through coughing and sneezing. Also, the measles virus can live for up to two hours in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, and then touch their eyes, nose or mouth, they can become infected.
Measles is so contagious that if one person has it, up to 90% of the people close to that person who are not immune also will become infected, according to the CDC. And it hangs around for a while. Infected people can spread measles to others from four days before through four days after the rash associated with the disease appears.
If you decide to notify employees that they may have been exposed to measles, make sure you do not identify the diagnosed individual, Hammock stresses. Instead, you can let them know that it has come to your attention that someone who was present in the workplace was diagnosed with the measles and your company is following recommended medical guidelines.
“To reduce the risk of causing panic, employers should provide only scientific and medical information about the disease, including steps employees can take to reduce the chances of infection,” he urges.
Hammock also notes that because there are no specific OSHA standards applicable to a measles outbreak, the agency does not mandate that employers notify other exposed employees, although you may decide that doing so is the best course of action to pursue.
When it comes to the infected employee taking leave, keep in mind that federal ADA and Family and Medical Leave Act provisions may apply, depending on the situation, in addition to any state or local laws.
“As a practical matter, the ill employee presumably will need to take time away from work during treatment and recovery, and the employee may or may not have paid time off (PTO) accrued,” he says. “If the employee does not have PTO available, he or she should be encouraged to work with human resources to find a way to limit any further exposure to coworkers during his or her recovery by working from home or taking unpaid leave.”
Being Cautious Is Good
To be especially cautious, you could allow employees who are concerned that they may have been exposed to the measles or are uncomfortable going to the office during the infectious period to take PTO if they wish, Hammock adds. “In fact, if the employer is notified that another employee has a medical impairment that compromises his or her immune system in such a way that exposure to measles may create a ‘direct threat’ of harm to the employee, it may be necessary to engage in the interactive process to determine the nature of the employee’s medical status and need for accommodation.”
In that case, he says, it likely will make sense to place such employees off work or permit them to work from home pending this interactive process.
Employers also must be careful not to take any adverse employment actions against an employee with the measles diagnosis because of that diagnosis or any associated need for leave. Many laws exist to protect employees from any kind of discrimination due to health concerns and for certain types of leave requests.
Requiring employees to be vaccinated for the measles can be problematic if your employees do not work in a healthcare setting or around vulnerable populations, Hammock also warns.
“There are privacy, disability and religious discrimination considerations regarding vaccinations that preclude an easy answer to this question. At the very least, and particularly if you are unsure whether employees have been vaccinated for the measles, you could inform them about medical facts regarding measles transmission and treatment.”
He reminds employers that they can provide a fact sheet from the CDC to employees and make sure to reassure them that the ill individuals will be out of the office until medically cleared to return.
To encourage employees to seek vaccination voluntarily, employers can inform workers that the measles vaccine is safe and effective, and provide links to the CDC information. The employer also can stress that getting the measles vaccine within 72 hours after exposure may stop fellow employees from getting sick.
“This information should reduce any potential panic and ensure that anyone who feels they have been exposed to the disease feels empowered to protect their own health,” Hammock observes. Some employers go a step further and provide for onsite vaccinations at the workplace or offer to pay for their employees’ vaccinations.
“With these steps—and a liberal grant of PTO where necessary—employers can help minimize risks and help employees stay healthy,” Hammock concludes.