Employers Must Wage War on the Flu and Its Workplace Effects

Author: Melissa Burdorf, Legal Editor

Flu season has arrived with a vengeance. The Centers for Disease Control and Prevention (CDC)'s weekly map shows that the flu is widespread in all but two states and the District of Columbia. This data reflects the urgency for all employers to have in place policies and practices to deal with the expected impact of the flu in the workplace. These policies should be clearly communicated to employees.

The flu is a highly contagious disease that can spread quickly from person to person - which can lead to a pandemic. Not only would a flu pandemic cause an employer's health care costs to skyrocket, but employee absenteeism will cause business operations to suffer.

To prevent a flu pandemic, employers can take the following precautionary measures:

Post and hand out guidelines, flyers and suggestions to all employees to prevent flu outbreaks. The CDC has created a Seasonal Flu Information for Businesses & Employers webpage, which provides free resources and printable materials for businesses and employers regarding flu prevention and workplace-specific guidelines. Several states have also created websites targeted at helping employers manage the flu season;
Require that its employees adopt infection control practices such as regular hand washing, covering mouth when coughing, avoiding close contact with sick employees, getting plenty of sleep at night, eating right and using hand sanitizers. The Occupational Safety and Health Administration (OSHA) has prepared guidance on this topic;
Host a flu vaccination clinic or promote the flu vaccination;
Ask an employee exhibiting signs of the flu if he or she is experiencing any specific flu-like symptoms (such as fevers or chills and a cough). However, employers need to tread carefully here to ensure they are asking very limited questions and not soliciting other protected medical information (which may violate the Americans with Disabilities Act (ADA) or other state or local antidiscrimination laws). Employers must keep all information about the employee's illness as a confidential medical file;
Ask an employee who becomes ill at work or shows signs of the flu to leave the workplace;
Ask employees with symptoms or exposure to the flu to stay home if there is a risk of infection;
Require employees to wear personal protective equipment during a flu pandemic. If an employee with a disability needs a related reasonable accommodation under the ADA (e.g., nonlatex gloves, gowns designed for individuals who use wheelchairs), the employer should provide it, absent undue hardship; and
Require a doctor's note or a fitness-for-duty certification (certification from a health care provider that the employee is able to resume work) from an employee returning to work after being out with the flu. This requirement should be disclosed to employees in advance of their absence and should be applied consistently and nondiscriminatorily.

Employers should also consider:

Having a contagious disease policy or pandemic leave policy;
Offering flexible work arrangements and telecommuting during pandemics;
Being more flexible with their paid time off policies and attendance polices during pandemics. Currently, federal law does not require employers to provide paid leave to employees who miss work because they have the pandemic flu or have been exposed to someone who has the flu. However, state or local laws may have different requirements;
If an employee's pandemic-related injury or illness or that of a family member is a serious health condition under the Family and Medical Leave Act (FMLA). See Employee Leaves > FMLA > Determining Employee Eligibility. Leave taken by an employee to avoid exposure to the flu is not protected under the FMLA. The Wage and Hour Division of the Department of Labor has created questions and answers regarding the pandemic flu and the FMLA; and
Whether an employee's injury or illness implicates the ADA. See Employee Management > Disabilities (ADA).

While an employer can take many measures to prevent a flu outbreak, the employer must be careful that its actions do not violate the ADA or other state or local antidiscrimination laws. Thus, employers should not:

Ask employees about their underlying medical conditions, which may lead to the disclosure of disability- or genetic-related information; or
Exclude individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat (a significant risk of substantial harm even with a reasonable accommodation). During a pandemic, employers should rely on the latest CDC and state or local public health assessments to determine if a particular flu rises to the level of a direct threat.

In addition, employers should be careful about enforcing a mandatory flu vaccination policy or practice. The Equal Employment Opportunity Commission (EEOC) has weighed in on this issue and has published a technical assistance document titled Pandemic Preparedness in the Workplace and Americans with Disabilities Act. In question 13 of the publication, the EEOC recommends that employers only encourage employees to get the vaccination, rather than require it. The EEOC's reasoning is that a mandatory policy or practice fails to account for an employee's request for a reasonable accommodation when, for example, an employee has:

A health reason/disability that prevents him or her from getting the vaccination (such as a severe egg allergy, as most flu vaccinations have an egg component); or
A sincerely held religious belief, practice or observance that prevents him or her from receiving the vaccination.

If an employer decides to have a mandatory policy, it should include an interactive process that allows for reasonable accommodations based on disability or religion. Employers should also check to see if there are any state privacy laws implicated by such a policy.