Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: I just learned that one of our employees has the measles. He works on a floor with 20 coworkers in an open office seating arrangement. Can I tell the other employees why he’s out so they can get tested or monitor their own health? Can I require them to receive the measles vaccine?
—Feeling Peaked in Poughkeepsie
Great question. Given the recent measles outbreaks around the country, this is a very relevant and timely concern. Since the beginning of 2019, the Center for Disease Control (CDC) has confirmed over 400 cases of measles. These cases include outbreaks—or three or more reported diagnoses—in California, Illinois, New Jersey, New York, Texas and Washington. Even the U.S. Congress has gotten involved, with the Oversight and Investigations Subcommittee of the House Committee on Energy & Commerce holding a hearing on measles outbreaks on February 27, 2019.1 And, after 26 weeks of a measles outbreak in a New York suburb, the city went so far as to ban unvaccinated minors from public places.2 With these public health concerns in mind, we will address what an employer can do in response to learning of an employee’s measles diagnosis and whether you can require vaccinations.
Employee Privacy and Next Steps After a Measles Diagnosis
After you learn that an employee has been diagnosed with the measles, there are a few steps you can take to help employees protect themselves. An initial step to take is to contact your local public health department to seek guidance as to how to handle the situation. Your local public health department can be an important source of information regarding how the disease is transmitted and what steps should be taken to protect the employee diagnosed with measles as well as other potentially exposed employees.
You should also remember that employee privacy rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) mandate that medical professionals and health service companies protect the identity of a patient’s health status.3 Even if you are not directly covered by HIPAA, you should be very careful about whether and how you notify other employees of the situation. It is possible that measles may be considered a “disability” under the federal Americans with Disabilities Act (ADA) and/or state and local law counterparts to the ADA (especially those whose definition of a “disability” is even broader than the ADA’s – such as yours in New York state). In turn, such laws may restrict disclosure of the fact that a particular employee has measles. The local public health department may also be able to provide guidance about the need for – and scope and content of – notification. According the CDC, measles is highly contagious for those who are not immune to the virus:
It can spread to others through coughing and sneezing. Also, measles virus can live for up to two hours in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, then touch their eyes, noses, or mouths, they can become infected. Measles is so contagious that if one person has it, up to 90% of the people close to that person who are not immune will also become infected.
Infected people can spread measles to others from four days before through four days after the [associated] rash appears.4
At a minimum, if you decide to notify employees that they may have been exposed to measles so that they can attempt to minimize the chances of exposure and/or seek medical evaluation and/or treatment, you should not identify the diagnosed individual. Instead, an employer can let employees know that it has come to the employer’s attention that someone who was present in the workplace was diagnosed with the measles and that the company is aware and is following recommended medical guidelines. To reduce the risk of causing panic, employers should provide only scientific and medical information about the disease, including steps employees can take to reduce the chances of infection. Because there are no specific OSHA standards applicable to a measles outbreak, OSHA does not mandate notification to other exposed employees.
Regarding leave time, bear in mind that there are federal ADA and Family and Medical Leave Act provisions that may apply here, depending on the situation, in addition to any state or local laws. As a practical matter, the ill employee presumably will need to take time away from work during treatment and recovery, and the employee may or may not have paid time off (PTO) accrued. If the employee does not have PTO available, he or she should be encouraged to work with human resources to find a way to limit any further exposure to coworkers during his or her recovery by working from home or taking unpaid leave.
To be especially cautious, you could allow employees who are concerned that they may have been exposed to the measles, or are uncomfortable going to the office during the infectious period, to take PTO if they wish. In fact, if the employer is notified that another employee has a medical impairment that compromises his or her immune system in such a way that exposure to measles may create a “direct threat” of harm to the employee, it may be necessary to engage in the interactive process to determine the nature of the employee’s medical status and need for accommodation. It likely will make sense to place such employees off work (or to permit them to work from home) pending the interactive process. Employers must also be cautious not to take any adverse employment actions against the employee with the measles diagnosis because of that diagnosis and/or any associated need for leave, as numerous laws protect employees from any discrimination due to health concerns or certain types of leave requests.
Can Employers Mandate Vaccination?
Requiring employees to be vaccinated for the measles can be problematic if your employees do not work in a healthcare setting or around vulnerable populations. There are privacy, disability, and religious discrimination considerations regarding vaccinations that preclude an easy answer to this question. At the very least, and particularly if you are unsure whether employees have been vaccinated for the measles, you could inform them about medical facts regarding measles transmission and treatment. Employers can provide a fact sheet from the CDC, and reassure employees that ill individuals will be out of the office until medically cleared to return.
To encourage employees to seek vaccination voluntarily, employers can publicize that the measles vaccine is safe and effective, with links to the CDC information. Further, businesses can emphasize that getting the measles vaccine within 72 hours after exposure may stop a person from getting sick. This information should reduce any potential panic and ensure that anyone who feels they have been exposed to the disease feels empowered to protect their own health. Some employers go a step further and offer to arrange for onsite vaccinations at the workplace and/or to pay for employee vaccinations.
As mentioned, employers that provide health care services or serve a particularly vulnerable population will have different needs and considerations regarding employee notifications and vaccinations, but requiring vaccinations is still a tricky business.5 However, it does not appear that these special business considerations apply in this case.
In short, once you have been notified that an employee has the measles, first make sure to contact the local public health department and ensure that the diagnosed employee has a treatment plan and sufficient time to recover away from work. An announcement to coworkers who could have come into contact with the afflicted individual may then be appropriate, to explain that the company is aware of the diagnosis and is taking appropriate steps to make sure other employees are safe. This announcement should contain appropriate links to medical information on the prevention and diagnosis of measles so that employees have the information—and motivation—to take control of their health decisions related to vaccination and treatment. With these steps, and a liberal grant of PTO where necessary, employers can help minimize risks and help employees stay healthy.
1 Confronting a growing public health threat: Measles outbreaks in the U.S., House Committee on Energy & Commerce, Oversight and Investigations, Feb. 27, 2019.
2 Matthew S. Schwartz, N.Y. Suburb Declares Emergency, Bans Unvaccinated Minors From Public Places, NPR, Mar. 27, 2019. The ban was subsequently enjoined ten days later. See Frances Stead Sellers, Judge rules New York county can’t ban unvaccinated children from schools, parks, The Washington Post, Apr. 6, 2019.
3 Health Insurance Privacy and Accountability Act of 1996, https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html.
4 Centers for Disease Control and Prevention, About Measles: Transmission of Measles, https://www.cdc.gov/measles/about/transmission.html (last visited Apr. 8, 2019).
5 For discussion, see David Broderick, Dear Littler: Do We Have To Accommodate A Religious Objection To The Flu Shot?, Dear Littler (Sept. 20, 2018).