Brian Ashe Quoted in Disability Compliance Bulletin

The October 26 issue of Disability Compliance Bulletin features Brian Ashe in an article, “Pandemic flu policy must cover issues of accommodations, FMLA leave,” about the potential event of a flu pandemic and the ramifications on employees protected by the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

It's best to have a policy in place to deal with the issues when they arise rather than scramble at the last minute, said attorney Brian T. Ashe of Seyfarth Shaw in San Francisco. Most employees who are affected by a flu won't have symptoms that last for more than 30 days, which is probably not enough to make their condition a disability. However, some employees could be entitled to FMLA protection and accommodations under the ADA because of preexisting conditions, Ashe said. "The biggest issue for some employers in a pandemic is who is going to be protected by the law and who is entitled to accommodations," he said.

There are three things employers need to pay attention to, Ashe said.

One is whether the flu affects an employee to such a degree that it becomes a chronic condition that requires treatment over a long period, and eventually the employee requests accommodations.

Second is whether an employee, because of a preexisting condition such as a respiratory illness or HIV, and who normally does not require an accommodation, requests an accommodation because his medical condition is exacerbated by the flu.

The third is whether an employer considers an employee who is laid up for a long time with the flu as disabled.

In any of those three situations, an employer may want to err on the side of caution and enter into the interactive process and consider reasonably accommodating the employee to avoid legal action later, Ashe said.

Employers may also want to revisit their accommodation policies and make changes conditioned on a flu outbreak, Ashe said. For example, a company that does not allow employees to telecommute may decide to suspend that policy or make exceptions for those employees whose preexisting conditions could be exacerbated by being in contact with someone who has the flu, Ashe said… Isolating an employee in another room could form the basis of a harassment claim, Ashe said.