Can your boss really do that?

Employers are allowed to take certain actions, depending on the level of pandemic flu.

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"Can my boss send me home if she thinks I have the flu?"

"Can I be forced to get a doctor’s note before I can come back to work?"

"How much information can my supervisor ask of me when I call in sick?"

There are many questions and unknowns swirling around in the wake of the swine flu pandemic.

Employers are as anxious as their employees to find answers and make good decisions, both for the sake of their staff and businesses, said Harvey Crowder, administrator for Walla Walla County Public Health Department.

A report just released by the U.S. Equal Employment Opportunity Commission addresses some of the concerns surrounding pandemic flu and the workplace.

Preparing for such events includes everything from global and national public health strategies to an individual employer’s plan for how to keep the doors open.

Federal guidelines are in place for best practices regarding that challenge, including implementing strategies in line with the Americans with Disabilities Act.

The law protects people with disabilities from discrimination. According to federal officials, this legislation comes into play during a pandemic, even for employees who do not have a disability.

During such a time, the agency’s guidelines about "direct threat" are perhaps even more important, officials said.

The term is defined as a significant risk of substantial harm to the health or safety of a person or others that can’t be eliminated or reduced by reasonable accommodation.

Assessments to determine the threat of harm has to be based on factual and objective information, the EEOC said — not "subjective perceptions or irrational fears."

In the case of the flu pandemic, it means a state or local public health official decides when the disease poses such a threat that people need to be excluded from the workplace, Crowder explained. Without such a decision, employers cannot ask employees to show they are not a risk to themselves or others by being at work.

While employers can legally ask staff who have been out ill with the flu to get a doctor’s note approving a return to work, it’s not a good idea, Crowder said. The last thing local medical providers need is for anyone to come in who doesn’t need to be there — sick or well.

But employers must be sure to have the same standard for all employees in the same job category and the information must be treated as part of a confidential health record.

In addition, locally available flu tests are only about 70 percent "predictive," meaning the results sway depending on how much virus is in place at the moment. A positive or negative test result is not likely to be very useful in determining level of contagiousness, Crowder added.

Employers are also not allowed to ask an employee if he or she has a compromised immune system or chronic health condition that might lead to a higher susceptibility to flu complications.

Bosses can, however, try to identify which workers are more likely to be unable to be at work during a pandemic. Those might include employees who rely on public transportation, have children enrolled in schools or day care, at high health risk or living with someone who falls into the high-risk categories for serious complications from the flu.

Employers are allowed to get this information only through a single yes-or-no question, according to regulations.

Businesses are not allowed to rescind a job offer if a medical exam done after the offer is made reveals a health complication that puts that person at increased risk of complications from the flu.

Unless, the EEOC said, the nature of the job would pose a direct threat to the applicant or others should he or she contract the flu.

While federal officials are aware public health recommendations are evolving in response to the pandemic, employers are expected to make their best efforts to stay abreast of appropriate and most-recent advice during an pandemic.

The strongest weapon any business has is preparation for employee absence, including cross-training and contingency planning, officials say, and a pandemic team should be formed and include someone well-versed in equal employment opportunity laws. Employees who have disabilities should be included in the discussion, officials said.

Sheila Hagar can be reached at sheilahagar@wwub.com or 526-8322. Check out her blog at blogs.ublabs.org/fromthestorageroom.

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