While it is not unlawful to ask an employee the nature of the death, it is also not customary nor necessary and could be an action that leads to a discrimination claim. The Civil Rights Act protects employees from employment discrimination based upon national origin. Singling out employees with family members in Mexico and treating them differently could start the careless employer down the path to a discrimination claim. The real issue at hand is not whether the family member died from the swine flu, but if the employee has been exposed or has symptoms. This could come from the plane ride or close contact with anyone infected (family member or not), but not from the deceased. Therefore, it is not recommended that the employer asks for this information. Rather, the employer should review guidance from the Centers for Disease Control and OSHA and, if necessary, craft a policy specific to the immediate time frame for those traveling to and from Mexico and include in this policy information on precautions and any procedures for safely returning to work.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. Contact the Knowledge Center for more information.

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