H1N1 Workplace Legalities

At Tyson Foods in Amarillo, some employees are claiming discrimination.

"They said, we want you to be out for three days," said an employee at the plant.  "And I asked with pay? They said no."

Laura visited Mexico last week. Upon her return, she says the company asked for an H1N1 test.

"Because you're from Mexico, go get a test," explained Shawn Twing, labor and employment law attorney with Sprouse Shrader Smith in Amarillo. "And in that case you could run file with the American Disabilities Act. And as well, again, a possible Country of Origin Discrimination if you are only targeting employees from a specific part of the world."

In a statement to NewsChannel 10 the company says, "because we care about the health and safety of our employees...such steps were taken this week with two of our workers at our Amarillo plant who just returned from Mexico. As a precautionary measure, we asked them to delay their return to work for 72 hours. Contrary to what you have learned, they were told they are being paid for their time off."

But Laura says she wasn't offered compensation and can name five others in her same situation.

"It's unfair because they can see when someone is sick.," she said. "There was no need to ask me for the test."

And she is right. According to the Americans Disability Act (ADA) employers cannot request certain medical exams. They do, however, have the right to establish regulations.

"There is nothing in the law that would prohibit an employer from setting up a barrier to prevent influenza from being spread in the workplace," noted Twing.

But that is only if they apply those rules across the board and do not single out a group based on their country of origin.

Twing says that would be discrimination.

What does the law say?

Employers can ask you to go home if your are sick or show influenza symptoms. They also can require you to bring a "return to work note" from your doctor.

But, according to ADA, employers cannot ask to see certain medical exams. In addition, they cannot single out people based on their country of origin.

The Occupational Safety and Health Administration (OSHA) also has guidelines for employers on how to deal with the influenza pandemic.

Other organization provide similar tips pertaining to the influenza outbreak on their websites: