H1N1 Flu: Evaluate your Sick Leave and Workplace Policies Before You Need Them

This is not a garden-variety flu season. H1N1 flu (also known as "swine flu") has been declared the first official pandemic in 41 years, and World Health Organization statistics show a continual increase in the number of H1N1 cases rather than the leveling off that was initially expected. The CDC’s October numbers reveal that California has widespread reports of H1N1, including workplaces and schools. Even if the predictions of an influenza season of pandemic proportions don’t occur, advance planning makes good business sense.

You may experience severe absenteeism. Employees may be absent because they are sick or because they must care for sick family members. Schools and daycare centers may close so parents will need to tend their children in the home. Even if daycare centers remain open when schools are closed, daycare centers will not accept potentially infected children from closed schools. Plan for how you will deal with the serious increases in absenteeism you may experience during any contagious disease outbreak. This includes paid and unpaid sick time, possible FMLA/CFRA for longer term leaves for serious health condition and managing the flow of work during periods of high absenteeism.

Given the likelihood that influenza will continue to spread and adversely affect economic activity, the Equal Employment Opportunity Commission (EEOC) has published new technical guidance reminding employers of their rights and requirements under the Americans with Disabilities Act in relation to pandemic planning. The EEOC says:

•Employers may ask employees whether they have symptoms of a cold or the seasonal flu because it is not a disability related inquiry. But note: California’s Fair Employment & Housing Act (FEHA) severely restricts what you can ask (or say) to an employee about chronic medical conditions. When in doubt – seek guidance. And be careful about what you write in email.

•Employers may send employees home if they display influenza-like symptoms. If employees report feeling ill at work or call in sick, employers may ask them if they are experiencing influenza-like symptoms, such as a fever, chills, and cough or a sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

• Measuring an employee’s body temperature is a medical examination. Therefore, it must be justified by being job-related and consistent with business necessity. The pandemic influenza symptoms could meet this standard if they become more severe than the seasonal flu or if H1N1 becomes widespread in a community as assessed by state and local health authorities or the CDC.

•BUT: If the pandemic influenza remains similar in severity to seasonal influenza or the 2009 spring/summer H1N1 virus outbreak, employers may not ask employees who do not have symptoms of H1N1 flu to disclose whether they have a medical condition that could make them especially vulnerable to influenza complications.

•EEOC has available an ADA-compliant pre-pandemic employee sample survey that combines medical and non-medical inquiries about employees’ ability to come to work during a pandemic. The objectives are to provide employers with information they need to plan for a pandemic and to shield employers from receiving information about chronic diseases or illnesses that employees might have.

•Employers may require employees to adopt infection control practices in the workplace. Employers generally should consider encouraging, rather than requiring, employees to get the seasonal and H1N1 influenza vaccines. People with religious or disability-related reasons may refuse vaccination.

Preliminary Planning Checklist
1.Sick Days, Unavoidable Time off, Leaves of Absence and Disability Issues

•Determine how you will handle sick days on a paid or unpaid basis.
•Make sure your FMLA/CFRA policies are up to date.
•Consider policies that encourage ill workers to stay home without fear of reprisals.
•Develop procedures for when you may need to send a sick employee home.
•Develop other flexible policies to allow workers to telework (if feasible).
•Consider how you will address absenteeism for employees without child care if schools close.
•Follow appropriate procedures to stay on the right side of ADA/FEHA disability issues.

2.Promote Proactive Wellness

•Provide resources and a work environment that promote hygiene and infection control.
•Provide tissues, no-touch trash cans, hand sanitizer, disinfectants and disposable towels.
•Have workers to clean their work surfaces regularly.
•Provide education and materials available through the CDC and OSHA.

3.Consider in Advance Procedures for Following Local Health Dept. Alerts

•Plan to implement practices to minimize face-to-face contact between workers
•Consider strategies as extended use of e-mail, websites and teleconferences,
•Evaluate flexible work arrangements to reduce the potential for widespread exposure.

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Article courtesy of Stuart Baron & Associates, LLP, a specialized law practice focusing on controlling workers’ compensation claims and preventing related labor/employment law disability discrimination charges against employers. http://www.sbalaw.net offers unique training programs, publications and services aimed at creating the necessary awareness and compliance commitment.