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Vol. 45, No. 8
You can't stop communicable diseases, but you can inoculate employees against any fear those diseases may breed.
An employee brought a grandchild to an office holiday party on a Friday night. Over the weekend, the child grew increasingly ill until, on Monday, a doctor handed down a frightening diagnosis—meningitis.
The child’s diagnosis instantly became the office’s nightmare. Meningitis is communicable, and so is fear.
“Word got out and employees started to go crazy,” recalls David Porter, HR director at Saint John’s River Water Management District in Palatka, Fla. The employees were afraid that they or their guests who attended the party might have been exposed to the disease. So, Porter began an effort to quell the rumors by racing to the Internet to find accurate information about meningitis and calling on the local health department for help.
Like Porter, HR professionals can be suddenly plunged into a crisis when a communicable disease enters the workplace. The challenge for HR is to balance the rights and protect the safety of multiple constituents—who sometimes have competing interests, says Renae Stolar, an attorney and HR consultant with The Human Equation, an HR consulting company in Fort Lauderdale, Fla.
Employers facing these situations are “dealing with the affected employee, they’re dealing with their own interests of having an effective and efficient workforce and they’re dealing with the company’s employees who have a right to a safe and healthy workplace pursuant to OSHA [Occupational Safety and Health Administration regulations],” Stolar says.
The role of HR in any disease scare is to limit the panic and helplessness of employees by countering rumors and misinformation with accurate information about the disease and the risk of transmission, says Porter. And, he adds, HR must encourage employees to seek appropriate medical treatment if necessary.
Gauge the Immediate Threat
In the case of the water management district, Porter quickly armed himself with information. Because the employee whose grandchild was ill was one of his HR staffers, Porter had early notice of the potential problem.
“The first thing we did was get on the [Centers for Disease Control] web site and get all of the information we could,” he says. “We contacted the local health department. We got ourselves educated and then we educated our employees, giving them our suggestions and telling them they needed to contact their own health providers.” His staff sent e-mail and memos and met with employees to tell them about meningitis, its symptoms and treatments.
Porter had to answer the question that attorney Mary Elcano says should be the first one HR poses: “Is there a threat to the health and safety of others from the disease?” When the person with the disease is an employee, Elcano says, you answer this question by learning the nature of the disease, the risk of infection and whether the infected person is under medical care that keeps the disease in check.
“I think that it’s almost required of the HR professional to get a professional medical opinion,” says Elcano, a partner with Brown & Wood in Washington, D.C., and former general counsel and executive vice president of HR at the U.S. Postal Service. “[HR] can’t possibly know the duration or nature of the disease without a medical opinion.” Even if the employee brings in his or her own medical opinion from a physician, Elcano recommends review by another physician of the employer’s choice. “Some of this is so complicated that you really need a doctor to interpret another doctor,” she says.
To find a doctor to provide the second opinion, check with medical professionals in an employee assistance program, health maintenance organization or insurance company. Other sources of doctors might include the local health department, medical associations or associations focused on specific diseases. Doctors asked to give second opinions should be given the employee’s job description to help them determine whether the disease affects the employee’s ability to do his job.
‘Who Is It?’
While dealing with the ill employee, HR also must communicate quickly with the workforce to prevent employees from either overreacting or underestimating the threat of infection. HR professionals are in a bind: They have to tell employees that someone in the workforce is or was contagious but legal and privacy concerns often prevent them from answering the first question from employees: “Who is it?”
“You have to be sensitive to privacy issues and not disclosing the information about the person’s personal medical history to others,” says Stolar. HR professionals should protect the affected employee by providing the workforce with information about the disease in general but not about the individual’s specific case, says Stolar and others. The Americans with Disabilities Act (ADA) imposes strict limitations on the use of information obtained from physical examinations.
“You have to be very careful that anything any human resource professional does, does not violate the privacy or confidentiality of the employee,” says Elcano. Unless the employee permits HR to identify him to other employees, HR’s responses to questions must be limited. Some responses HR professionals might give if questioned about an employee who is assumed to be infected—particularly in a small organization where it is obvious who the employee is—might be “You know I can’t talk about that” or “This is a confidential matter and I cannot confirm or release the name of the employee.”
HR may need to inform the employee’s supervisor of the affected person’s identity because accommodations such as time off or a temporary change in job tasks may require the supervisor’s knowledge. “You would work with the supervisor to see what job functions are not essential and which functions you can remove from that person’s responsibilities, but you don’t have to tell them exactly what that person has,” Stolar says.
Calm Fears with Information
While the answer to “Who is it?” needs to be limited, the answers to questions about the nature and communicability of the disease should be thorough. Employees should be informed as quickly as possible in as many ways as possible, through memos, e-mail and meetings, Porter advises.
“It’s very important to bring in a professional” to discuss the true facts of the situation, says Elcano. “It’s a good way to get at the fear issue.” She recommends holding a meeting to give employees an opportunity to ask questions and to communicate the company’s plans.
Diane Malanowski, an HR director for PricewaterhouseCoopers in Fort Lee, N.J., adds that you may need to tell employees whether they need to be tested for the disease and what you will do about treatment, if needed.
A former employer of Malanowski dealt with an infectious disease situation in which providing employees with information was a very high priority, she says. The company sent out a question-and-answer memorandum each week advising employees, responding to anticipated and actual questions and providing additional resources. She describes the company’s communications as saying, “Here are the questions we think you might have, here’s the nature of this infectious disease, here’s what we’ve been told it’s all about.”
Not all employers are so communicative. Porter offers two examples of how different employers handled employee fears about AIDS in very different ways.
Porter formerly worked for a state social services agency where, when AIDS first surfaced as a workplace issue years ago, employees were concerned that they would have to deal with clients who might be HIV-positive or have full-blown AIDS, he says. The employer responded by sending a memo to staff “telling them that they would be fired if they did not provide service to all customers,” Porter says. The employees reacted with anger.
Another case involving AIDS demonstrates a more positive way to handle concerns, Porter says. An administrator at a state psychiatric facility knew that the facility would be receiving individuals with AIDS and wanted to prepare staff. The administrator called together employees who would be dealing with these patients and said that anyone wanting to transfer to a different section would be allowed to do so. Only one person transferred.
The administrator asked what employees needed to make them feel comfortable and they requested masks, gowns, gloves and shoe covers. They got them. “When the first person with AIDS/HIV arrived,” Porter says, “staff used their gloves, masks, etc. and felt comfortable. Eventually, the equipment was used less until it disappeared, except for medically appropriate situations.”
AIDS, while communicable, isn’t spread through casual contact, a fact that not all employees may be aware of or believe. Understanding the nature and communicability of any disease is critical to ensuring that the affected employee is treated fairly and the rest of the staff receives accurate information.
Protecting the Public
Another consideration is whether you need to protect the public. “It depends on what the disease is and what type of contact the affected employee has with clients or customers in the workplace,” says Stolar. “Providing a safe workplace includes safety for customers and clients.”
“There may come a time when the public good outweighs the privacy of the employee, but that depends on the specific facts and that would require the health department to become involved,” Elcano says.
Malanowski says she would never release an employee’s name to the health department without the employee’s consent or knowledge. Instead, she says, “We would call the employee and let the employee know that the health department has been inquiring. We would speak to the health department to find out how they handle confidentiality and what they would suggest happen if and when they’re inquiring about an individual who has asked that their name not be released.”
Local health departments also can be your allies in informing employees. While the CDC web site is a good source of information, Porter says that he also relies on local health officials because “they can give you more in-depth information and answer questions that are specific to your particular case.”
Be Prepared with Policy
Headline-generating diseases like AIDS, meningitis and tuberculosis aren’t the only ones with which HR should be concerned. There are other contagious diseases that virtually every HR professional will encounter, particularly influenza and colds. “Once something as infectious as a flu-like symptom enters the workplace, it is an epidemic,” says Dr. Alan Roberts, an occupational medicine physician with Sunshine Medical Center, in South Miami, Fla., and an expert in implementing disease-prevention plans for municipalities and corporations.
Roberts emphasizes that protecting employees should also include preventing diseases. An employer can offer flu vaccines or provide travel vaccines to employees who travel internationally. Even giving employees apparently simple guidelines, such as reminding them that hand-washing can help reduce transmission of the flu, could help.
Stolar recommends workplace training and basic education about infectious diseases and how they affect employees. “Recognize that [communicable disease] is an issue that does exist in the workplace and that, eventually, you will have to deal with this issue,” Stolar adds.
To be prepared for a situation involving an infectious disease, prepare written guidelines, have an attorney and a medical adviser review them and make sure all employees know about them.
Elcano suggests that the guidelines say that the employer will look at “the nature, duration, severity of the disease and the probability that it can be transmitted” and that “the contagious disease will be reviewed for the threats to the health and safety of others.” The policy also should require that employees tell the employer if they have been exposed to an infectious disease. Add a statement that management has the right to ask for a second opinion on the employee’s medical condition.
Protect Yourself Legally
While having a policy offers protection, the employer must be committed to putting that policy into action. Elcano says that an employer might face allegations of negligence from other employees if the employer fails to react to a communicable disease.
A negligence case involving communicable disease could follow the same pattern as recent cases in which employees sued employers after incidents of workplace violence, Elcano says. Employees have alleged in those cases that employers had some prior knowledge that violence was possible but did not act to protect them. In theory, employees could bring a similar case against an employer that knew an employee had a contagious disease but failed to protect workers, Elcano says.
An employer also might run into negligence issues if its hiring procedures require medical examinations for certain positions but the employer does not follow through with an exam, fails to get results of an exam or fails to send results to doctors for assessment.
What about requiring medical examinations for employees when you suspect they might have a communicable illness, but they have not come forward and told you so? “In certain positions, based on business necessity, you can conduct medical examinations of individuals who may expose others to danger and harm, but you have to be careful,” says Stolar.
The ADA imposes stringent rules on physical examinations of current employees. Examinations must be job-related and justified by business necessity. The issue of a “fitness-for-duty” examination usually arises because the employee’s behavior, attendance or performance indicate problems that could be related to illness, Elcano notes.
Remember, too, that the disease may be considered a disability under the ADA. “You have to first determine whether the disease qualifies for and constitutes a disability under the law, and then whether the person otherwise qualifies for the job,” says Stolar. The answer varies depending on the type of disease, the severity of the disease and the job duties of the employee. If the person qualifies as disabled under the ADA, the law treats the infectious disease the same as any disability: You may be required to make accommodations.
In the hiring process, the ADA also plays a role if you believe a potential employee may have a communicable disease. The law says that an employer cannot require a medical examination prior to making a job offer, Elcano says. The employer does have the right to make employment conditional on the new employee passing an examination, but that examination must take place after the job offer.
And what happens if you find out that a new employee does, in fact, have a communicable disease? “You can’t withdraw the offer of employment unless you find that the contagious disease is job-related, that no reasonable accommodations can be made and that withdrawing the offer is consistent with some business reason to do so,” Elcano says.
For more information about communicable diseases in the workplace, visit the HR Magazine section of SHRM Online at www.shrm.org.
Lin Grensing-Pophal, SPHR, is a Wisconsin-based business journalist with HR consulting experience in employee communication, training and management issues. She is the author of The HR Book: Human Resources Management for Business (Self-Counsel Business Series, 1999).
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