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Measles in the Workplace

4.1.15

Peter Gillespie was quoted in Risk Management Magazine on April 1, 2015. The article “Measles in the Workplace” addresses the rise of Measles in the workplace.

“The Americans with Disabilities Act generally prohibits employers from asking employees for medical information,” said Peter. “By asking if they have been vaccinated or not, the employer risks invading their personal privacy by asking about issues that may otherwise have absolutely no relevance to the ability of people to do their job and that may be protected information under state and federal law.”

The safest course is simply to provide information, encouragement and incentives without questioning employees, he said.

But this does not necessarily mean that employers can require action. “In the case of an individual who is unable to get the vaccine, there may need to be accommodations that could involve having the employee wear masks or simply not deal with certain patient populations where the risk is present,” Peter said. “The employer still has an obligation to make an inquiry into the situation and deal with the facts that are present and make individualized determinations about the best course of action.”

In the event that an employee does become infected, employers must be careful when deciding how much to disclose to the rest of the office. The employee’s identity is likely considered private, and naming them may introduce ADA and HIPAA issues, depending on how the employer learned of the illness. For notification forms and letters, Peter recommended that organizations follow the lead of schools and day care facilities: disclose that there is a report of a sick person in the environment, inform the community at large so they can take reasonable precautions, and provide general information about the virus and recommendations on how to proceed. In most cases, that should be enough.

Safeguarding the workplace itself may demand more of the employer, particularly with the measles. “An employer faced with an outbreak has to think about what to do to protect the rest of the workforce,” Peter said. “Because the measles virus is a little bit heartier than a lot of others out there, it may be necessary to bring in someone to clean up an employee’s work station and the work area in general to make sure that the virus isn’t lingering somewhere on a doorknob, keyboard, coffee mug or other surfaces to which other workers are exposed.”

Beyond the ethical duty to keep workers safe, containing an outbreak is particularly important for employers to reduce the company’s broader legal liability. “If the exposure occurred in the workplace as a result of coming into contact with someone else in the workplace who had the illness, it may be a reportable event for purposes of OSHA recordkeeping,” Peter explained. “Depending on how the workers comp statutes are written, under state law, it may well be compensable under workers compensation as well.”

While Peter does not anticipate legal fallout from the current outbreak, he believes it presents a critical lesson for employers. “This outbreak is just another reminder to employers that these are policies that should be looked at and considered and employers should know where to get the information they need,” he said.

Much of that assistance can and should come from human resources, Peter said. “The human resources staff should have somebody who is keeping up to date on information relating to the various illnesses that are going around,” he said. “In most cases, the bigger risk to an organization is the disruption that comes about when you start to see something on the news and people begin to worry about their own situation and don’t necessarily have all of the information available. It is critical to have somebody within the organization who is looking to CDC for guidance and can help the organization assess the risks and relevant action to take on an individual, particularized basis.”

As with any virus, these prevention efforts can include having information available about the basic steps employees can take, from making sure that immunizations are up to date to reminders about hand-washing and other common-sense ways to keep from getting sick. “More often than not, the employer’s best measure to protect the workforce is simply to encourage everyone to take the reasonable steps to avoid picking up one of these viruses,” Peter said.

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