In light of the Zika virus scare, can I require an employee traveling to the summer Olympics in Brazil to get medical clearance before returning to work?

Q:     I have an employee that is planning to visit Brazil for the summer Olympics.  As a huge sports fan, I am very excited for my employee… U-S-A- … U-S-A!  But, as a bone fide germ-a-phobe and an employer that feels responsible for his employees’ wellbeing, I am scared of the Zika virus, which has been largely reported in the host nation.

Can I require an employee traveling to the Olympics to get medical clearance before returning to work?  Or, would such a request violate the Americans with Disabilities Act (“ADA”)?  Are there any other options?

A:     The Equal Employment Opportunity Commission (“EEOC”) provides specific guidance regarding permissible actions that an employer may take during a pandemic.  While the guidance is not binding legal authority, it sets forth established ADA principles that are relevant to these types of questions.  The guidance notes that an employer is permitted under the ADA to require an employee who has been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to work.   It is unclear whether this is limited to employees who have been out sick, or if it also includes those who have been traveling.

Note, that the ADA only allows employers to request medical information or order a medical examination when an employer has a reasonable belief (based on objective evidence) that an employee poses a “direct threat” because of a medical condition. That “threat” must be job-related, and the requested medical information must be consistent with a business necessity.[1] Because the Zika virus is not transmitted from person-to-person in casual contact, the ADA standard may not be satisfied in many job settings.[2]  That could change if the employee works in an agricultural seating where certain types of mosquitos are present.

That said, the EEOC guidance also notes, “[i]f the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.”  As such, the employer should check with the CDC and determine if it is recommending that employees stay home after returning from Brazil.  So far, public health agencies have imposed no quarantine on people returning from areas in which the Zika virus has been found.

Like any agency-provided guidance, it does not address all situations.  For example, the EEOC guidance assumes that there is a “pandemic.”  What if the illness is not considered a “pandemic” but just a dangerous situation?  These types of questions can be novel and should be vetted with your employment attorney.  However, reviewing materials like the EEOC’s Guidance on Pandemic Preparedness in the Workplace, the Americans with Disabilities Act, and the EEOC’s Guidance on Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act (ADA), is a good place to start.

In addition to Zika, you may also be concerned if the employee goes swimming![3]

[1] http://www.eeoc.gov/facts/pandemic_flu.html

[2] http://www.cdc.gov/zika/transmission/index.html

[3] http://www.latimes.com/sports/sportsnow/la-sp-sn-water-pollution-2016-olympics-20150730-story.html

Three Super Bowl inspired questions for your halftime discussions.

This is a Super BMJ Employment Answer – Three Super Bowl inspired questions for your halftime discussions.

Q.     After the Super Bowl, can the Broncos fire Peyton Manning for being too old?  Isn’t age discrimination illegal?

A.     Generally, an individual is not in a protected class for age until they are over 40 years old.  Peyton Manning turns 40 on March 24th.  At that point, the Broncos (according to the Age Discrimination in Employment Act of 1967) could not take into account Peyton’s age when making an employment decision.  It would seem the Broncos could not choose a younger quarterback just because he is younger – it would have to be based on other performance factors. (29 U.S.C. §§ 621-634.)  Luckily for the Broncos, Peyton has not reached his golden years just yet, and short arming throws and the inability to throw spirals is not a protected class.  As such, they could probably move on…  It would be interesting, however, if he has a great Super Bowl, and he outperforms his back up in the Fall.  Then what?  Mr. Elway/Broncos, my number is on the blog site.

Q.     Is the expansion of the Rooney rule (a requirement to interview a minority candidate before hiring coaches and executives) to include a requirement to interview women, legal?  Should it be extended for LBGT individuals?  What about players and certain positions on field?

A.     It is illegal for an employer to discriminate against a job applicant for being a member of protected class. (42 U.S.C. § 2000 et seq.)  It is also illegal to base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.  The interesting component of the Rooney rule (and its proposed expansion) is that it does not purport to exclude any protected class, but to simply ensure that certain protected classes are always part of the interview pool.[1]  As such, it is likely lawful.  That said, when race or other protected classes are involved it is always tricky.  One could argue that, by specifically including one particular protected class (aka women), this could potentially be to the patent exclusion of other protected classes (aka discrimination).  An interesting case could be made if an organization decided to only interview three people and somebody was excluded from the interview process because they didn’t belong to the protected class that the NFL is trying to promote through this new rule.

On the field, physical size, skill and strength generally determine who gets what position.  This would seem to make it difficult to always include older Americans or women for many positions on the football field. However, it could be argued, that certain stereotypes have persisted in the NFL (even though some of them have been regularly broken as of late) such as a Caucasian quarterbacks/kickers or African American wide receivers.  So far, there are no lawsuits that I am aware of, but if somebody felt they weren’t given a chance because of race or gender despite having the requisite skill set for a certain position, a lawsuit is certainly plausible.

Q.     Cam Newton inferred that some people don’t like him because of his race, what is the NFL’s requirement to protect its players from third party harassment such as from fans or sports talk radio?

A.     Employers are generally responsible for ensuring a harassment-free workplace for employees, regardless if the alleged harasser is a co-worker, manager, independent contractor, customer… or fan.  In this case, Newton has remarked that being a black quarterback “may scare a lot of people.”[2]  If those people are fans, and they shout epithets, what could the NFL do?  Or, if radio show hosts pick on him for being African American.  For starters, they are required to take reasonable remedial measures.  It would be easy to eject the offending fans from the stadium and to issue social media responses asserting that they do not tolerate such behavior.  They could also pull endorsements of radio shows/stations.

[1] http://www.huffingtonpost.com/entry/the-nfl-will-implement-a-rooney-rule-for-women_us_56b3a045e4b08069c7a67110

[2] http://www.usatoday.com/story/sports/nfl/panthers/2016/01/27/cam-newton-carolina-super-bowl-50/79414764/

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.