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Restaurants Can’t Ask About Swine Flu

From Nation’s Restaurant News:

Asking about H1N1 can expose risk to lawsuit

Lawyers say it could be illegal to ask employees to cough up personal information concerning Swine Flu

By Lisa Jennings

Picture the following scenario: Sally the server has just arrived for her shift, but she doesn’t look well. She is coughing, hoarse with a sore throat and just asked a coworker to feel her forehead for fever.

That scenario is likely to repeat itself throughout restaurants nationwide in coming months in what is anticipated to be a flu season made even more brutal by the appearance of H1N1, or swine flu. As restaurateurs heighten their hygiene practices to prevent outbreaks from what has already been declared a pandemic, they also need to know some of the legal aspects of dealing with H1N1.

For instance, when Sally walks in the door, it’s not a good idea for her manager to ask if she has the dreaded swine flu, say attorneys around the country, who have been fielding many questions about H1N1. Asking whether an employee has swine flu could be considered a disability-related inquiry, which is prohibited under the Americans with Disabilities Act, they note.

The spread of H1N1—and the likelihood that it may soon appear in more workplaces—intensified this fall as kids returned to the collective germ pool of school campuses and then brought those germs home to working parents.

In late September, the Centers for Disease Control and Prevention reported an unusual level of widespread influenza activity in 26 states, particularly in the South, and employers were being urged to prepare for the possibility of an outbreak in their communities.

The Americans with Disabilities Act sets limits for when and how employers may inquire about medical conditions, and though the swine flu may not technically be considered a disability “it could be perceived as disabling because of myths about it,” said attorney Jonathan Mook, an ADA specialist with DiMuroGinsberg in Alexandria, Va.

Mook said the legal issues are similar to those related to HIV infection.

If an employer asks specifically about swine flu, for example, and later is perceived as not wanting to work near the employee, even after the worker is no longer contagious, there may be grounds for a discrimination complaint, he said.

The ADA also requires that an employee’s medical conditions be kept private, attorneys say.

That means managers should not announce that Sally the server is out with the swine flu, even if she has volunteered that information to co-workers, said Martin Ellis, an attorney with Butler, Vines & Babb in Knoxville, Tenn.

“You can tell workers that you are concerned that they may have been exposed” to swine flu without identifying the employee who may have exposed them, he said…

Where are we going?

And why are we in this handbasket?

This article was posted by Steve on Monday, October 12th, 2009. Comments are currently closed.

5 Responses to “Restaurants Can’t Ask About Swine Flu”

  1. BillK says:

    This is where political correctness has gotten us.

    From Nation’s Restaurant News:

    Asking about H1N1 can expose risk to lawsuit

    Lawyers say it could be illegal to ask employees to cough up personal information concerning Swine Flu

    By Lisa Jennings

    Picture the following scenario: Sally the server has just arrived for her shift, but she doesn’t look well. She is coughing, hoarse with a sore throat and just asked a coworker to feel her forehead for fever.

    That scenario is likely to repeat itself throughout restaurants nationwide in coming months in what is anticipated to be a flu season made even more brutal by the appearance of H1N1, or swine flu. As restaurateurs heighten their hygiene practices to prevent outbreaks from what has already been declared a pandemic, they also need to know some of the legal aspects of dealing with H1N1…

    http://www.nrn.com/article.aspx?id=374230

    Nice.

    • wardmama4 says:

      The swine flu – if it doesn’t kill you – isn’t permenent (or even long term – 2 to 3 weeks for the worst symptom) – thus H1N1 is not a disability and should not ever be considered one. Just one more way of victimizing some people (those who chose to lead the pc life) and silencing others (those who have functioning brain cells and some common sense).

      As the parent of a disabled person – I really, truly dislike the cavalier way the idiotic pc people are banding about that word around and demeaning it and thus the people who are truly disabled and not going to ever recover.

      And of all people I want to be questioned, screened and tended to re H1N1 – it would be healthcare and restraurant workers.

  2. Confucius says:

    But I have to reveal my weight. (And soon my daily salt intake.)

    Kiss my big, yellow, MSG-soaked, mongolian 屁股 !

  3. canary says:

    Obama’s executive branch run government health care violates the Constitution as to unlawful siege and search, medical privacy laws, and the American’s with Disabilty Act. Our lawmaker’s should be pointing this out.

    • canary says:

      For example if Obama’s presidential branch learns you have PTSD when those with are on the Homeland’s security terrorist list, they might force you to take those pills that wipe out your memory.

      I wonder if the gay’s recent protest has placed them on the Homeland’s Security terrorist list.


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