My question, at its core, seems fairly simple:

When coworkers are sick at my workplace, does my employer have any obligation to accommodate those of us who do not want to work near the sick people?

From what I have been able to find so far in my search, I know that the employer has the right (but is not required) to send sick people home. But I am asking from the point of view of those of us who are healthy and want to remain that way.

Does the answer change if I (the healthy worker) am concerned the illness is not a common, simple cold or flue, since we currently have confirmed cases of both pertussis (whooping cough) and mumps in the area I work in (within the city itself, and also in a nearby city)?

I am not asking for legal advice, rather I am asking about what the law says concerning my right to a safe work environment.

Following is background information, some of which may be relevant.

Keep in mind that, while my two oldest children have received the MMR vaccine and the one for pertussis, my two youngest children have not received these vaccines.

Yesterday I went home early because of someone who works in very close proximity to my desk was coughing and sneezing. There were very recently cases of both pertussis and mumps in the city I am working in, and I work in an open area with aisles of cubicles.

I talked to my lead engineer to explain, then sent an email to him and my manager to let them know I was leaving early yesterday and for the following days this week would be coming in to the office during off hours to work in the absence of the coughing and sneezing.

Today I check my email to find that my manager's email response, to me and the lead engineer I work under, started off by asking my lead engineer if he is OK with this and if I would be able to do my job with minimal support during this time. You can guess about how I feel about this inquiry, but my question here is more to the point of: Does it matter if they are OK with this? Do they have a legal right to deny me reasonable accommodations while the work environment is literally toxic?

Some points about my particular case:

  • The building I work in is always open, and I think security is always here. There is no cost to company for me to work the off hours I proposed.
  • It is not at all uncommon for people to work crazy hours for other reasons, especially for approaching deadlines (ie: work until midnight or later)
  • The company claims to be flexible and officially we have "flex time"
  • Even now, it is after 7AM my time, more people have started coming in, and several of them have already started coughing, sneezing, and sniffling, leading me to believe the problem is spreading.

So, am I at the mercy of the whims of my employer such that they can allow or deny my request at their pleasure?

  • Sorry for any confusion from before I edited. Though I accidentally said "pertussis and whooping cough" originally, I meant to say "pertussis(whooping cough) and mumps." Whooping cough (worse than it sounds) is pertussis. We do currently have both pertussis and mumps as separate cases in my area. I am more concerned about the pertussis, since 2 of my family members have died from it in the past. – Aaron May 23 '17 at 15:21
  • Important unsupplied context is the OP decided to not vaccinate their two youngest children. This puts the question in a whole new light. As I remarked on the other asking of the question: since most US schools will by law refuse to admit your kids without the vaccinations, you'll have to vaccinate them soon, why not do it now? – smci Jan 28 '18 at 16:59
  • 1
    @smci: I'm curious how you know that it was a voluntary decision on OP's part. There are certainly possible reasons why it might be unsafe or inappropriate for a child to receive these vaccines. For example, the child might be too young (MMR and DTaP are normally first given at 1 year and 2 months respectively), or the vaccine might be medically contraindicated (and in this case schools would grant an exemption). – Nate Eldredge Jan 28 '18 at 20:20
  • @smci It is actually a combination of choice and what Nate suggests. At the time I made these questions, my youngest was too young. My oldest received the vaccines. The two in the middle received only the few with the highest cost/benefit ratio. The youngest still will not receive them when older, but at the time was too young. Each child has received fewer of the vaccines the more I learn about medicine. I'm not part of any of the extremist anti-vax "your kid will get autism" groups or anything; I made an educated choice based on vaccines' medical docs. Their benefit is grossly exaggerated. – Aaron Jan 29 '18 at 15:06
  • @smci Also, if it being entirely my decision does truly change the legal answer, I would be grateful to know how. I understand your school comment, which I addressed on my other question (they are home-schooled, partly for this reason), but how does "I opted out" change legal ramifications? I have a whole host of reasons why I think it shouldn't morally, but those are irrelevant here on law.SE. If your legal reasoning is that you think it's "only high risk due to personal negligence," note that it's high risk even for the vaccinated (the fact that some of us aren't only exacerbates the issue) – Aaron Jan 29 '18 at 15:14

There are regulations governing occupational safety, whereby e.g. an employer can be fined for forcing employees to work in a literally toxic environment, for instance breathing chlorine gas. You could file a complaint with a state or federal agency (OSHA). You would need to hire a labor lawyer to get advice about your specific circumstance, to see if there is indeed a provision that covers what you describe, though I doubt it would. OSHA's blurb on disease don't obviously cover your situation (they describe situations that govern healthcare workers in intimate contact with infectious materials).

However, certain diseases such as TB or Ebola cause a general health quarantine to be imposed, so if a worker comes in with such a disease, action would be taken by the health department. This does not cover sniffles, and probably not pertussis (but that's a local decision).

There are also regulations pertaining to disabled employees, whereby an employee who is disabled by having a severely compromised immune system can be entitled to reasonable accommodation, for example allowed to work in a closed room away from others (if the job is not a receptionist job). That entitlement only applies to the employee, and is controlled by objective health danger (requires a doctor's note), and not the comfort level of the employee.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.