By Robert G. Brody and Katherine M. Bogard
As of April 22, 2019, 83% of Rockland’s confirmed reported measles cases were found in children under the age of 18. If you learn that one of those children who is infected is related to someone at your workplace, what can you, the employer, do?
The measles outbreak and the accompanying vaccination or anti-vaccination movement is very politically charged and polarizing. It is also scary for many. Employees have strong opinions on both sides of the debate. Some employees even may choose not to vaccinate their children for religious or perceived health reasons. Therefore, remember to respond in a compassionate way when the employee tells you a member of their household has measles. It is the right thing to do.
Next, decide if you will tell other employees at the worksite that an unidentified employee has measles in their home? If so, secure the identity of the person and prepare for pressure trying to compel you to identify that person. There may even be a big conspiracy theory at the office attempting to target the impacted employee. Watch out for this.
Also, gather information from the local health department offices so you can accurately describe the disease and debunk the many rumors that may start. Have extra copies for distribution to everyone at work who wants it.
Determine Which Leaves Are Available
Your employee may be eligible for many programs that provide time off. As a preliminary matter, the employer, of course, should tell the employee that they can take any accrued paid time off they have to care for their household member.
Various laws, however, also provide leave for your employee to take care of their affected family member. If you have 50 or more employees, then the employee may be entitled to leave under the federal Family Medical Leave Act if the employee has worked at least 1,250 hours in the last twelve months. The FMLA provides an employee with twelve weeks of unpaid leave in a year.
Employers may also tell employees about New York State Paid Family Leave (New York PFL) which may also apply. While there are differing eligibility requirements for part and full time employees, New York PFL provides a set number of weeks of leave and pays a percentage of the employee’s salary. For full-time employees, it is ten weeks of leave this year.
But what if the employee requesting time off is not related to the sick person but simply wants to stay away until the issue passes? Stranger things have happened. In this case, review all your leave policies that do not require sickness.
Regardless of the benefit sought, be sure you follow all your normal protocols and all required paperwork is completed just as it always is.
Determine if and What Accommodations Need to Be Made
Employers must remember to provide employees notice of the leaves they may be entitled to as required by various laws. For instance, if an employer becomes aware an employee is eligible for federal FMLA they must provide the employee with the appropriate paperwork. The employer must provide an Eligibility and Rights & Responsibilities Notice within five business days of having notice of the employee’s need for leave. The employer should also give the employee a Statement of Rights under the New York Paid Family Leave Law. If the employee is the one affected by the measles, the employer should also provide the Notice of Claim and Proof of Disability form. There may be other applicable forms as well depending on the particular facts.
There Are Choices
Once all of the appropriate leaves and paperwork have been gathered and discussed with the employee, the employer should consider, what if any, accommodation may need to be made to the employee.
Accommodations are a key employer obligation but usually only for their employees. The Americans with Disabilities Act (“ADA”) and New York State law require employers to provide reasonable accommodations to employees with disabilities. While it is arguable if measles is a disability covered under the ADA, leave is not available under this law when the household member is affected and not the employee. Under the ADA and New York law, leave is an accommodation for a disabled employee and not for circumstances when their family member is disabled.
However, employers should be mindful the employee may be able to bring an associational disability discrimination claim against the employer. This claim arises when the employee is treated differently or effectively picked on because of their association with a disabled individual. Assuming measles is a disability, these types of claims are ripe in the workplace because many employees may not want to work with someone who has an affected family member. Case and point – the employee who wants to steer clear of the office until the whole outbreak is resolved. Watch out for this and take appropriate action to prevent this!
If the employee is entitled to an accommodation, the employee and the employer will be required to engage in the interactive process, i.e., a back and forth dialogue, to determine what accommodation works best. This process is required under both State and federal law. When a final determination is made regarding the accommodation the employer will provide, the employer should document this outcome.
Also, if the employee is the one who refuses to be vaccinated there may be other accommodations at play. The employee may have religious or health reasons for refusing the vaccination therefore the employer may need to make accommodations for the employee. The employer would be required to provide accommodations under State and Federal law.
In Part 3 of the series, we will discuss potential legal claims an employee may have when they disclose they have or a family member has measles.
Robert G. Brody is the founder and managing member of the law firm Brody and Associates, LLC. Katherine M. Bogard is an associate at the firm. The firm represents management in all Labor, Employment, and Benefits law issues.