What Non-Food Service Employers Need To Know About Hepatitis A

The Honolulu Star-Advertiser recently noted “Hawaii’s Hepatitis A outbreak . . . is the worst in the country since 2003.”  As of September 6, 2016, the State of Hawai’i Department of Health (“DOH”) has confirmed 241 cases of Hepatitis A across the state..

On August 8th, our previous Hawai’i Litigation post focused on the measures that Hawai’i employers across the food services industry can legally take in the workplace to address the risks of the Hepatitis A outbreak.  Hawai’i employers not in the food service industry and their personnel may be left to wonder, “What can we do at work to reduce the chances of a Hepatitis A outbreak?” and “what should we do if an employee becomes infected?”

In Most Work Environments, There Is Little to No Risk of Hepatitis A Transmission

There is little to no risk of transmission of Hepatitis A in offices and most other working environments not involved in food service.  This is because, according to the Centers for Disease Control and Prevention, although Hepatitis A is communicable, it is only spread by oral-fecal transmission.  That is to say, Hepatitis A is only spread when one person takes in through the mouth fecal matter infected with the virus.

Transmission most often occurs the following ways:

  • Person to person contact:
    • when an infected person does not wash his or her hands properly after going to the bathroom and touches other objects;
    • when a parent or caregiver does not properly wash his or her hands after changing diapers or cleaning up the stool of an infected person;
    • when someone has sex or sexual contact with an infected person and comes into contact with feces (though not limited to anal-oral contact).
  • Contaminated food/water:
    • when someone ingests food or drinks contaminated by fecal bacteria infected with the virus. (This can include frozen or undercooked food.) This is more likely to occur in countries where hepatitis A is common and in areas where there are poor sanitary conditions or poor personal hygiene. The food and drinks most likely to be contaminated are fruits, vegetables, shellfish, ice, and water. In the United States, chlorination of water kills Hepatitis A virus that enters the water supply.

Hepatitis A is not spread absent oral-fecal transmission; that is, by simply being in close proximity to someone who is infected, as occurs in most working environment such as an office.  Thus, Hepatitis A is not spread by:

  • being coughed or sneezed on by an infected person;
  • sitting next to an infected person;
  • hugging an infected person.

See, generally, CDC Q & A Hepatitis A; see also, National Institute of Health: Hepatitis A; State of Hawaii Department of Health: Hepatitis A (mostly refers back to CDC).

Don’t Ask, Don’t Disclose
Avoid Asking Employees If They Have Hepatitis A;
Don’t Disclose To Other Employees That Specific Employees Are Infected

Under the Americans with Disabilities Act (“ADA”), an employer must have a business necessity to ask an employee whether he or she has Hepatitis A or likewise, to disclose an employee’s Hepatitis A status to others, given that in most working environments and given most jobs, there is virtually no risk of transmission to others.

The EEOC has recognized some exemptions, permitting some specific companies within certain industries to ask/disclose, but these are narrow exemptions, either specifically permitted under the ADA or where given the nature of the workplace and the job, there may be a high chance of oral-fecal transmission.

For instance:

  • The EEEOC has noted that healthcare companies may be exempt from these prohibitions, but that the exemption is very narrow. The EEOC has said that a healthcare company may ask/disclose, out of business necessity, but only where the nature of the working environment leads to interactions by the employee with vulnerable populations and where the employee’s job involves “exposure-prone invasive procedures” for which the risk of oral-fecal transmission is higher.
  • Based on language within the ADA itself, the EEOC has also recognized that food service companies may also be exempt from these prohibitions, but again the exemption is narrow. This is because the ADA itself accommodates general state regulations designed to protect the food stock.  This is why, as noted in our previous post, the food service industry is permitted with more leeway to ask employees about their Hepatitis A status and disclosing it.  The ADA states:

Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services.

42 U.S.C. § 12113(d)(3).

See, generally, EEOC Letter: ADA: Disability-Related Inquired and Medical Examinations; see also, generally, EEOC: How to Comply with ADA: Guide for Restaurants and Other Food Services Employers.

The ADA, as interpreted by the EEOC, provides affirmative guidance for most employers.  Most employers will not have any cognizable business necessity to ask an employee, given the nature of most working environments and jobs, whether they have Hepatitis A, or to disclose that a specific employee is infected to other employees.  However, employers dealing with a workplace outbreak should consult an employment lawyer to assess their own business necessity, based on the nature of their workplace and their employees’ jobs.

Of course, there is no ADA prohibition against an employer simply saying to other employees that there is another employee who has Hepatitis A, without revealing his or her identity.  But employers should carefully consult with an employment lawyer before doing so; there is always a risk that other employees will figure out the identity of the employee who is infected based on recent absences or other identifying information.

There are myriad other federal/state concerns that may also apply as well.  The Genetic Information Nondiscrimination Act (“GINA”) may come into play to the extent an employer, knowing about infections of an employee’s family members, asks an employee whether he or she has Hepatitis A.  Therefore, there might be limits on what employers can/should ask.  The privacy provisions of the Hawai`i Constitution, as interpreted by the Hawai`i Supreme Court, may apply as Hawai`i law does not permit employers to invade employee privacy by disclosing confidential information.  State statute specifically prohibits employers from revealing employee health information.

Educate, Vaccinate, Accommodate

Instead, Employers Should Educate Employees on Hepatitis A and Hepatitis A Transmission, Offer Vaccinations, Encourage Employees To Take Time Off When Sick, And Engage Any Employees Who Fall Ill In An Interactive Process To Provide Needed Accommodation.

A better course of action for most employers is four-fold:

  1. Human Resources (“HR”), in tangent with a company or organization’s wellness committee, if there is one, should develop a workplace campaign to educate employees on how Hepatitis A is transmitted and to encourage hygienic practices at work to prevent transmission, such as regular hand-washing;
  2. HR and any wellness committee should also partner with the group health insurer and/or available medical professionals to offer employees the Hepatitis A vaccine (note though that employment, or continued employment, should generally not be made contingent upon employee vaccination; employees should not be forced to be vaccinated). If HR is unable to partner to offer the vaccine, HR should refer employees to where it is available externally;
  3. If the company does not already have one, HR should develop a comprehensive wellness policy, including a policy for employee sickness, which encourages employees to take time off when ill; HR should strictly apply this policy and encourage any employees who becomes sick to take time off; and
  4. For any employee who falls ill, HR should engage that employee in an active interactive process (recognizing any ADA and GINA sensitivities), to gauge if the employee is infected with Hepatitis A, and if so, to ensure that liberal, reasonable accommodations are provided to the employee, to permit maximum time off from work (pursuant to the ADA, the Family Medical and Leave Act (“FMLA”) and the Hawaii Family Leave Law (“HFLL”).