Over the past several months, there have been many releases from the Federal government regarding how to keep children, elderly adults, and those with weak immune systems healthy should there be a H1N1 or other flu pandemic outbreak. While these are all important topics to consider; there are also key items that employers must be aware of regarding the spread of the H1N1 virus in the work place. This article will focus on specific labor law issues and how to prepare your organization. For more detailed information and a FAQ section, please consult the government website: http://www.flu.gov/faq/workplace_questions
In addition to considering the government’s FAQ section, it is recommended that employers also should be guided by federal employment law, as well as their own employee handbooks, manuals, and contracts (including bargaining agreements), and any applicable state or local laws.
Seasonal Flu versus a Pandemic
The first issue to consider is if the outbreak is a seasonal flu or a pandemic. According to the Occupational Safety and Health Act (OSHA), a seasonal flu is a periodic outbreak of respiratory illness in the Fall and Winter in the United States. A pandemic refers to a worldwide outbreak of influenza spread from person to person. When there is a pandemic, the likelihood of infection increases as the virus spreads throughout the population; possibly without vaccinations.
Family Medical Leave Act
An employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve weeks of continuous or intermittent leave under the FMLA. The 2009 revisions to the FMLA clarified that an employer’s normal time-off polices dictate who an employee reports their absence and whether that time off will be paid. Employers still retain the right to require a medical certification for the serious health condition of an employee or a qualified family member. Employers should review their policies now to ensure that their policies are written clearly and up-to-date before a pandemic flu outbreak.
Americans with Disability Act (ADA)
Recently, the EEOC issued guidance with respect to the ADA and the H1N1 flu. Under the ADA, an employer’s ability to inquire about an employee’s disability status is limited by when the employer makes the inquiry. It is recommended that employers review when it is permissible to make such inquiries. While employers are limited in their ability to make individual employee disability inquiries, the EEOC an employer may make broad, general inquires of its workforce. For example, an employer may ask its workforce whether certain conditions (such as school closing or reduced public transportation) will affect an employee’s ability to come to work.
The Fair Labor Standards Act
Employees who are not infected and are able to work may find that they must “fill-in” for absent, infected co-workers, In turn, they may find that their job descriptions are significantly altered. A change in a job description has implications for an employee’s exempt/non-exempt status and overtime compensation. Should there be an outbreak, employers may choose to allow certain categories of employees to telecommute. This is recommended by both OSHA and the CDC, but employers should be aware that it may impact measuring and tracking time worked for exempt employees and workplace safety/workers’ compensation issue. If a telecommuting option is to be implemented, consultation with a legal counsel is recommended to ensure compliance with FLSA/workers’ compensation.
Employees who face a greater risk for infection from a pandemic flu may be entitled to workers’ compensation for their medical expenses and lost wages if they contract the virus while on the job. While this may not impact all employers equally, those in the medical/health care field should consider the implications of increased claims.
There are a multitude of employment laws that Human Resource Professionals must consider regarding the issues posed by H1N1. A proactive approach is recommended in preparing to handle various scenarios that may result from a pandemic such as increased use (and possible abuses) of sick time, increased exposure to litigation, and new government regulations. Midwest Staffing has taken a pro-active approach and has an operational contingency plan in place should a pandemic outbreak take place. We are prepared to continue to service our clients to the best of our abilities under tough circumstances!