Maryland Bar Bulletin
Publications : Bar Bulletin : January 2010



Despite a decline in the number of U.S. swine flu cases, the national Centers for Disease Control (CDC) warned that a third wave of swine flu could occur this spring. Employers are obligated by federal and state occupational safety and health regulations to provide a safe workplace.

While employers may want to keep contagious workers out of the workplace, federal and state disability laws may limit their ability to ask employees about their medical condition or require them to take medical exams.

Generally, federal and state leave laws require employers to provide leave to employees due to sickness. Employees who get sick while on the job may be entitled to worker’s compensation benefits if the sickness resulted from another employee’s spreading their contagious illness in the workplace.

Under the Americans with Disabilities Act (ADA), a person has a “disability” if he/she has a physical/mental impairment substantially limiting a major life activity (such as hearing, sight or speech, among others). It is unclear whether swine flu meets this definition of disability as this pandemic only recently became so widespread.

However, the ADA prohibits covered employers (all employers with 15+ employees) from excluding individuals with disabilities from the workplace for health or safety reasons unless the individual poses a “direct threat” (a significant risk of substantial harm even with reasonable accommodation). It also requires reasonable accommodation for individuals with disabilities. And, it regulates employers’ disability-related inquiries and medical examinations for all applicants and employees.

The Family and Medical Leave Act (FMLA) requires any private employer with 50+ employees, living within 75 miles of their workplace, to provide up to 12 weeks of leave for the treatment of a serious health condition or to care for a family member’s serious health condition. A serious health condition must involve inpatient care in a hospital or medical facility, or continuing treatment by a health care provider.

To qualify as “continuing treatment,” the employee must have an incapacity of more than three consecutive days and subsequent treatment, or have an incapacity relating to the same condition, involving treatment two or more times within 30 days of the first day of incapacity or treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment (i.e., a course of prescription medication or therapy requiring special equipment to resolve/alleviate the health condition).

While the average flu virus does generally not meet the definition of a serious health condition, courts have held that the flu may qualify for FMLA leave if the condition otherwise meets the definition of a serious health condition [e.g., Miller v. AT&T Corporation, 250 F.3d 820 (4th Cir. 2001)].

With swine flue, an employee is hospitalized and/or is absent from work for more than three consecutive days. Or, the employee receives treatment by a physician while taking anti-viral medications. Clearly, this scenario fits into the definition of a serious health condition.

To establish a claim for workers’ compensation, an employee must have been injured in the course of employment. Generally, if swine flu were to be a compensable event under most workers’ compensation statutes, “the employee must be acting within the scope of their employment when exposed to the virus and the exposure must arise from the course of their employment” (as opposed to being a random event).

For example, a flight attendant who contracts the swine flu while working a flight from a fellow attendant or even a passenger could conceivably be entitled to compensation. He/she was acting in the scope of his/her employment and the exposure occurred in the course of his/her employment.

Likewise, if an employee brings the swine flu to the office, co-workers who subsequently become infected could make a case that the illness is work-related. Because the swine flu is only a temporary condition with few, if any, permanent effects, the filing of a workers’ compensation claim, in most cases, would be fruitless. If the flu permanently affected the person, then it may be a different story.

While this is not an exhaustive list of the possible laws that may be applicable if an employee catches the swine flu while at work, it is clear that employers should be cognizant of the effects of swine flu not only to their employees’ general wellness, but also regarding possible legal implications the swine flu may have on their business.

Eric D. Disharoon is an associate and Oren D. Saltzman is a member with Adelberg, Rudow, Dorf & Hendler, LLC. Disharoon focuses his practice in corporate, general business and employment law. Saltzman concentrates his practice in taxation, commercial and corporate law, civil litigation and creditor’’rights.

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Publications : Bar Bulletin: January 2010

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