Joan Gale and Mark Lies Quoted in ABA Journal
“Good Rx for Employers”

Joan Gale and Mark Lies were quoted in the January 1, 2010 ABA Journal article, "Good Rx for Employers." The article discussed the types of questions that labor and employment attorneys are fielding from clients about how to best protect themselves against liability regarding their office policies about influenza. According to the article, when an employer suspects someone might have H1N1, tensions arise between regulations of the Occupational Safety and Health Administration and what one can ask of an employee under the Americans with Disabilities Act. Joan noted that when employees do call in sick or must stay home with sick children, employment attorneys urge flexibility. Otherwise, you may be sending an unintentional message to your workers and "inadvertently may force people to come to work and infect your entire workplace."  

The article also noted that it’s not mandatory to tell other employees when someone is sick and sometimes people are misdiagnosed. According to Mark, “In at least a couple of cases, people have been shunned initially when they come back to work." The article discussed how Mark has heard of companies requiring employees to have their temperature taken by company nurses, but added that the Equal Employment Opportunity Commission has “cast a negative eye” on this. However, Mark commented that “if H1N1 rises to the level of a direct threat, it would be permissible.” Such requirements, he said, are “very equivocal."

The article concluded that the only employer to try mandating vaccinations, the state of New York, faced legal action despite focusing only on health care workers. Joan noted, “There’s just too many legal impediments."