Labor law update: what employers & their advisers need to know for 2010.

• Author: Terman, Mark E.
• Position: HRregulations

this time last year, employers wondered whether Barack Obama and a Democratic majority in Congress would mean changes to the playing-field for employers. So far, the answer is not really. While more federal laws have changed than in past years, none have dramatically increased burdens on employers in California, where significant employee rights and annual employment law changes are a part of doing business here. All told, it was a light year for added employment regulation in our state.

Health Issues

The H1N1 virus threat raises questions for employers who need to provide a safe workplace without violating employee rights under the disability discrimination, privacy and other laws. The Equal Employment Opportunity Commission's recent interpretive memorandum, "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," provides guidance and is available online at www.calcpa.org/EEOC.

For example, during a pandemic, an employer may, without violating the ADA:

* Require infection control practices, such as regular hand washing; coughing and sneezing etiquette; proper tissue usage and disposal; and working at other employer facilities or telecommuting);

* Send employees home if they display flu-like symptoms, such as fever or chills and a cough or sore throat;

* Ask employees that report feeling ill at work or that, call in sick if they are experiencing flu-like symptoms, though information about employee illness must be kept as a confidential medical record;

* Encourage such employees to stay away from work and consider telecommuting as a short-term measure;

* Make further inquiries, even if disability-related, if justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat; and

* Require medical certification as a condition of return to work.

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Employers may not require medical examinations of employees, such as measurement of employee body temperatures, unless the pandemic becomes widespread in the community as assessed by state or local health authorities or the Centers for Disease Control and Prevention. Additionally, employers may not ask whether employees have any medical condition that could make them more vulnerable to infection; and require employees to receive vaccines.

CDC and California Department of Public Health resources are at www.cdc.gov/H1N1 FEU and www.cdph.ca.gov. Seek advice of counsel on other laws that may affect...