The 2009-2010 flu season is now a few weeks under way. So far this year, most American workplaces have seen little impact from the flu. But with H1N1 in the mix, this year’s flu season is poised to be considerably more dangerous than usual. As the flu makes its way into more and more homes and workplaces, employers around the country have many questions about state and federal laws that come into play when making personnel or policy decisions in flu-related situations. This article offers in depth responses to frequently asked questions, provides resources for more information, and suggests best practices for protecting the health and safety of employees, minimizing disruption to business activities and avoiding employment claims when the flu hits the workplace.
The flu has not yet hit our workplace. What can we do to prepare?
Different industries will, of course, require different levels of flu-preparedness. For example, most health care providers such as hospitals already have detailed preparedness plans in place on which most employees have been trained. Recently, the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (CDC) released updated guidance for non-health care employers as part of a nationwide effort to limit the spread of seasonal flu and H1N1 and to help employers maintain business continuity during the upcoming flu season. The guidance can be found at www.flu.gov.
The CDC’s guidance articulates a number of suggested best practices when planning for and responding to an influenza outbreak. Suggestions include establishing an Influenza Pandemic Plan, coordinating with local and state public health partners, and clearly communicating expectations to the workforce on topics from simple hand-washing to policies on staying home with sick children.
The CDC’s guidance further cautions employers to consider two potential scenarios when planning for the upcoming flu season. The first assumes a low-severity outbreak of H1N1 similar to that which occurred this past spring. Even if this season’s H1N1 is relatively mild, however, employers can still expect greater absenteeism this year than in the past because the seasonal flu and H1N1 will hit at the same time. The second scenario assumes an outbreak of greater severity than that experienced this past spring, meaning more people with more debilitating symptoms, more deaths and rampant absenteeism.
Given that both scenarios pose a risk to the health and safety of workers, and given that any increased levels of absenteeism pose a corresponding risk of disruption to business operations, the CDC recommends that employers consider taking the following steps in advance of an outbreak in order to be prepared:
Review or establish a flexible influenza pandemic plan and involve your employees in developing and reviewing your plan.
Conduct a focused discussion or exercise using your plan, to find out before an outbreak whether the plan has gaps or problems that need to be corrected.
Understand your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter.
Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information.
Allow sick workers to stay home without fear of losing their jobs.
Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools or child care programs close.
Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.
Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce and associations, in order to improve community response efforts.
Of course, whether and to what extent the CDC’s suggestions are appropriate for a particular workplace will depend on the industry, existing infrastructure and business needs. Accordingly, providing generalized article advice on specific policies is not practical. Employers should evaluate the competing considerations in their workplaces and craft lawful personnel policies that still meet business objectives, such as sick leave policies that have built-in flexibility during a flu outbreak.
Can we require our employees to get flu shots?
In most workplaces, no. In the absence of a specific law or regulation authorizing mandatory vaccinations, employers face the potential for substantial liability under several state and federal laws, including laws prohibiting disability and religious discrimination, by requiring employees to get flu shots.
For example, under the federal Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, it is unlawful for an employer to ask disability-related questions, or force employees to disclose disabilities, unless the questions are job-related and consistent with business necessity. A disability-related question is any question that is likely to elicit information about a disability. Ordering employees to get flu shots implicates the ADA because it may force employees to disclose medical conditions – for example, to prevent a severe reaction between the vaccine and a medication the employee is taking for his or her disability.
To be permissible, therefore, an employer must be able to show that a mandatory flu shot program is job-related and consistent with a business necessity. For example, a hospital can likely meet this burden because of the increased risk of exposure in that workplace and the corresponding increased threat to the public if an outbreak were to occur in this particular workplace. The military is another industry where courts have upheld the employer’s right to require vaccinations.
If an employer cannot meet its burden to show necessity under these applicable laws, then the employer faces substantial potential liability under the ADA for implementing such a mandatory program. Of course, voluntary programs are perfectly acceptable, but employers should be cautious when offering incentives to employees in order to entice them to participate in a “voluntary” program. The EEOC has said that in order to be truly voluntary, a wellness program must not penalize employees who do not participate. Any incentive program must be carefully designed to avoid imposing what amounts to a penalty against those who choose to opt-out.
Interestingly, the EEOC, in its Pandemic Preparedness in the Workplace and the Americans With Disabilities Act guidance published on October 5, 2009, seems to suggest that during a “pandemic” – which, according to the World Health Organization, we have been in since June 11, 2009 – a disability-related inquiry may be job-related and consistent with business necessity when the employer reasonably believes that a “direct threat” of substantial harm to the health or safety himself or others exists which cannot be eliminated or reduced by reasonable accommodation. Because this presents such a fact-specific inquiry that depends on many variables, however, employers are advised to consult with counsel to the extent they believe a direct threat of substantial harm is looming in their workplace.
If an employee exhibits flu-like symptoms, can I send him or her home?
Yes. The CDC recommends that businesses advise all employees to stay home if they are sick with influenza-like symptoms until at least 24 hours after they no longer have a fever or signs of a fever. Employees who come to work sick or who appear to become sick during the work day can and should be sent home to prevent spread of the illness to the rest of the workforce. In general, requiring employees to go home due to routine flu symptoms is not a disability-related action and therefore does not implicate the ADA. Employers intending to send employees who are sick home should follow a consistent practice with respect to all employees to avoid discrimination claims. For this reason, preparing a policy in advance and clearly communicating that policy to all employees can help avoid claims of disparate treatment down the road.
What do I do about a healthy employee who refuses to come to work, travel or otherwise to do his or her job because of a professed fear of catching the flu?
Under the Occupational Safety and Health Act (OSHA), the circumstances under which an employee has the right to refuse work because of perceived hazard to the employee are very limited. Employees have a legally protected right to refuse to perform a job assignment only if (1) they have a reasonable and good faith belief, (2) that their work assignment would put them in real danger of death or serious injury, (3) they have asked their employer to address and eliminate the hazard and this has not occurred, and (4) there is insufficient time, due to the urgency of the situation, to have the hazard eliminated by contacting OSHA and initiating the OSH Act’ s regular inspection an enforcement mechanism.
Having a “good faith” belief is both a subjective and objective state. This means (1) the employee must personally perceive a serious imminent danger (so an employee’s statement to a supervisor suggesting that the threat to the employee of death or serious injury is not immediate would indicate there is not the requisite good faith), and (2) the employee must have had reasonable grounds to believe that the danger existed at the time of the refusal. Reasonableness is measured by what a reasonable person would have perceived given all the facts and circumstances known to the employee at the time.
Where an employee does not have a reasonable good faith belief of imminent serious danger or has not followed the normal course to have the hazard addressed where there is sufficient time to do so, then the employer may lawfully discipline the employee for refusing to work. Employers should follow their ordinary discipline or policies or practices and document the reasons for their decisions in the event they are later called on to defend their decision. In addition, it is possible that a collective bargaining agreement or local law might impose a different standard on the workplace than that prescribed by OSHA. Accordingly, employers who are presented with safety and health complaints like these may want to consult with local employment counsel to determine the best course of action.
If an employee catches the flu at work, is that covered by workers’ compensation?
Workers’ compensation laws vary among the states. Typically, an illness or injury is only covered by workers’ compensation if it arises out of and in the course of employment. Generally, infectious diseases such as the flu cannot be sufficiently traced to the workplace to qualify for coverage. However, some state laws actually mandate workers’ compensation coverage for employees who contract infectious diseases where the hazard of contracting such diseases is inherent in the nature of the employment. In most cases, this occurs in the health care industry where, for example, a health care worker contracts the flu from a patient. In such a case, the employee may be entitled to workers’ compensation. Similarly, in workplaces where employees work in close physical proximity, an employee who contracts the flu and can pinpoint his or her exposure to a coworker may have a good argument that the illness is work-related. These cases are difficult to prove, however, so the regulatory authority that oversees a particular state’s workers’ compensation system will usually have a policy on how to resolve these claims. For example, the Massachusetts Department of Industrial Accidents has taken the position that the issue of workers’ compensation coverage for the flu must be resolved by an administrative law judge.
In general, employers are not required to report every case of the flu to a local workers’ compensation authority. Similarly, if an employee is absent due to the flu and casually mentions that he believes he contracted the illness from a coworker, the employer does not automatically have to treat the statement as a claim for workers’ compensation. If, however, an employee claims that his flu or its related symptoms or complications are work-related, then the employer should treat the claim the same as all other claims of workplace illnesses and report the illness to the employer’s workers’ compensation insurance carrier. If the illness causes an absence from work for the applicable statutory period (typically five days), the employer should also report the illness to the appropriate local workers’ compensation authority, who will address the issue of coverage.
Does someone with the flu qualify for FMLA leave?
In certain circumstances, yes. An employee’s absence from work due to the flu or its related complications may qualify as job-protected leave under the Family Medical Leave Act (FMLA) or similar state leave laws. Employers should first determine (1) whether the worksite is subject to FMLA, and then (2) whether the individual employee meets the FMLA qualification criteria described below. If both tests are satisfied, then the employee with the flu or its related symptoms does, in fact, qualify for FMLA leave.
FMLA generally does not apply to worksites with less than 50 employees working within a 75-mile radius. This is important because many large employers mistakenly assume that all worksites are subject to FMLA, just because the employer has more than 50 employees aggregated among all of its worksites. This is not correct. FMLA only applies to worksites that have 50 or more employees working within a 75-mile radius, regardless of the size of the company.
Large employers can, however, unwittingly invoke FMLA coverage at smaller worksites in certain circumstances. Federal courts have applied FMLA to worksites with less than 50 employees where the employer failed to make clear that a corporate FMLA policy published in a company handbook did not apply to its smaller worksites and further “misled” employees by sending paperwork characterizing an employee’s leave as FMLA leave. In these cases, even though FMLA did not apply according to the letter of the law, the courts nevertheless subjected the employers to the requirements of FMLA – including the requirement of job restoration upon return from leave – given the employer’s “misleading” conduct. In light of these federal cases, employers who do not wish to subject smaller workplaces to FMLA should evaluate existing policies to ensure that they make clear that FMLA does not apply to workplaces with less than 50 employees working within a 75-mile radius and that their communications to employees taking leave are consistent with these policies.
Once it is established that the worksite is subject to FMLA, the particular employee’s eligibility depends upon two factors. First, the employee must have worked at least 1,250 hours in the previous 12 months. Second, the flu-related symptoms suffered by the employee or the immediate family member must rise to the level of a “serious health condition.”
Under typical conditions, the flu does not qualify as a “serious health condition” under FMLA. The flu may qualify as a serious health condition eligible for unpaid, job-protected leave under FMLA, however, if an employee’s flu-related symptoms (or that of the employee’s immediate family member) are more severe and involve (1) an overnight stay in the hospital or (2) an incapacity of more than three consecutive days plus subsequent treatment or period of incapacity relating to that condition that also involves either of the following:
Treatment two or more times, within a 30-day period, by a healthcare provider with the first visit occurring within seven days of the onset of the condition
Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the provider
Can I designate flu-related leave as FMLA leave, even if the employee does not want me to do so? If so, how do I go about doing that?
You may designate flu-related leave as FMLA leave despite an employee’s objections, but only so long as the flu-related condition qualifies as a “serious health condition” under FMLA. Determining whether the condition qualifies as a serious health condition can be a challenge if an employee is not cooperative. Under FMLA and its regulations, however, it is always the employer’s responsibility to designate a qualifying absence as FMLA leave and the designation may only be made based on information provided by the employee or the employee’s spokesperson, such a spouse or treating physician. If an employer does not have enough information to make the determination (e.g., the employee may not be cooperative if he or she suspects the employer is trying to designate the leave as FMLA leave), it can and should ask the employee for more information.
For example, if the employer knows that the employee is out of work reportedly due to a severe flu and the absence extends beyond a certain period of time, the employer may want to send a letter to the employee seeking further information. For relatively short absences, the benefit to the employer in designating an employee’s leave as FMLA leave may not outweigh the resulting administrative burden. In addition, there are strict rules about what an employer may ask an employee in these situations, so employers should consider having legal counsel prepare a standard form letter that complies with FMLA.
Once the employer has sufficient information to know that the employee’s leave may be for an FMLA-qualifying reason, the employer must also follow the procedural requirements of FMLA in order to designate the leave as FMLA leave. First, the employer must provide a Notice of Eligibility and Rights & Responsibilities within five business days of learning the information that leads the employer to believe the leave might be FMLA-qualifying. In the case of leave related to the flu, this might mean within five business days from the day the employer learns that the employee had an overnight stay at the hospital, or five business days from the day the employer has other reason to know that the employee’s illness may qualify as a “serious health condition” as defined in the previous section. For example, the employee might claim incapacity for five days, and then provide two doctors notes showing two separate doctors visits in that time span. This would indicate that the employee is suffering from a “serious health condition” as defined by FMLA, and the employer would be entitled to follow ordinary FMLA procedures for designating the leave as FMLA leave.
To avoid addressing these issues on the fly this flu season, employers would be wise to consider implementing a standard procedure for designating flu-related leave as FMLA leave. Such a procedure could involve following the usual FMLA procedures when it is the employee who requests the leave. When the employee does not request FMLA leave, however, the employer may want to pick a standard number of days of absence that will trigger a follow-up letter to the employee seeking more information. The employee will then have 15 days to respond to the letter, whereupon the employer may elect to designate the leave as FMLA leave if the information provided supports a conclusion that the leave qualifies as such. Retroactive designation is permissible in these circumstances.
Throughout this process, all of the usual FMLA procedures apply. For example, once the employer has enough information to designate the leave as FMLA qualifying leave, the employer must send a Designation Notice to the employee within five business days. Employers with questions about the procedural requirements of FMLA should consult with their employment attorney and review the comprehensive FMLA guidance on the U.S. Department of Labor’s website.
Where can employers find additional resources this flu season?
Federal agencies such as the CDC, OSHA, the Equal Employment Opportunity Commission and the Department of Homeland Security, as well as a number of state and local departments, have issued guidance for businesses and employers to prepare for this year’s flu season and to provide assistance in addressing some of the novel legal issues it may present. Some of these materials can be found here: