Q & A: Taking Chances: Fantasy Football, Employee Handbooks & Contagious Illnesses


Question Corner

Taking Chances: Fantasy Football Leagues, Employee Handbooks/Policies, and Contagious Illnesses

By Jason R. Mau

Q: One of our senior managers would like to start a fantasy football league for his department. He wants the participants to pay $5 a week and have the winner of the week receive the proceeds. As an employer, can we promote this, or is it considered gambling?

A: Since the winner of the league would receive proceeds originally charged for entry, this league would be considered gambling under the Idaho Constitution and Chapter 39 of Title 18 of the Idaho Code.  The company promoting the league would also be considered gambling.  Code Section 18-3802(b) considers knowingly permitting gambling to be conducted upon property owned by the actor a misdemeanor. 

Q: Our company CEO told me not to worry about drafting an employee handbook. What can I say to change his mind and convince him it’s a good idea to have a handbook?

A: While your CEO may be rightfully concerned with possibilities that an employee handbook could someday be used against the company to defeat an at-will employment challenge or be interpreted to be an implied contract, an employee handbook, if drafted well, can be very beneficial to your company.  First, the handbook could provide an introduction to new employees.  Next, it could clarify and help ensure consistency on company policies, especially attendance and leave policies.  Third, the employee handbook could let all readers understand that your intent is to treat employees equally and protect all employees from unlawful harassment and violations of their rights.  Fourth, a well drafted procedure for reporting and resolving harassment and discrimination claims could protect the company from liability for harassment or discrimination caused by supervisors.  At the same time, drafting an employee handbook may provide your company with an opportunity to update or introduce policies related to social media, privacy, and company property and networks.  However, keep in mind that however well an employee handbook is drafted, it will not be helpful if the policies are not consistently applied or enforced.

Q: We have multiple facilities in various states. One of our locations has seen an increase in workplace injuries. Can we implement preemployment physicals and drug screenings at this one location, or would we have to do it for the entire company?

A: As long as the guideline for physicals and screenings for this location meets all local (state, county, municipal) minimum legal requirements, federal law does not forbid your company from adopting a location-specific policy if the variation from the policies at your other locations are set on a nondiscriminatory basis.  So, under these circumstances, I would recommend that the new policy be implemented carefully to avoid a policy which ends up discriminating against applicants on the basis of age or disability.   

Q: We have two employees whose children have been diagnosed with a contagious illness. They are showing no symptoms, but other employees don’t want them coming to work. May I make these employees stay home? 

A: Yes, if other employees are at risk, you may ask the employees to stay home until the risk of exposure passes.  Under OSHA’s General Duty Clause, the employer has a duty to make the place of employment free from hazards that are likely to cause death or serious physical harm.  If the illness can be potentially harmful to the health of one or more employees, this duty extends to directly protecting your employees.  Thus, policies that prevent the spread of communicable illnesses and diseases, and require employees to inform their employer of such a threat, are encouraged by OSHA and the Centers for Disease Control and Prevention.  In fact, OSHA has guidelines for employers in some industries (like food service) to deal with certain communicable diseases and illnesses.  Keep in mind, depending on the specific circumstances, that these employees may be eligible for Family or Medical Leave, short term disability, a flexible work arrangement, or other benefits under your company’s policies, or under any applicable employment contract or collective bargaining agreement.  While the company works through this specific incident, it may also need to consider a temporary relaxation of attendance policies until the illness is no longer transmissible through normal work contact. 

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.