What’s The Deal With The Swine Flu?

Kegler Brown E-mployment Alert

The new strain of swine flu influenza (H1N1) has garnered much publicity and attention. Fears and questions about the new virus have, in turn, generated concerns about its potential impact on the workplace. At this point, there is not an abundance of guidance on how employers should cope with swine-flu related issues, let alone a severe pandemic. In the meantime, here are some thoughts on some common questions:

1. Do we have to allow time off work when employees or their family members are sick with the swine flu?
It’s probably a good idea to allow time off to employees who are affected, to any degree, by the swine flu, in the interests of both (a) retaining your employees long-term, and (b) restricting the possible spread of the flu to your other employees. Beyond that, the FMLA or the ADA may require you to grant time off, depending upon the circumstances.

The FMLA allows eligible employees who have a “serious health condition” to be off work for up to twelve aggregate weeks. One form of a serious health condition occurs when an employee is incapacitated for more than three calendar days and is treated by a health care practitioner. In addition, the FMLA mandates that an employee be allowed time off work in order to care for a spouse, child, or parent of the employee who has a serious health condition. Therefore, an employee must be allowed time off to care for a spouse or a child with the flu, if the flu symptoms reach the level of a serious health condition.

While a flu condition that is short-term would not be a disability, it is possible that long-term complications from flu infection could result in the condition being considered a disability under the expanded amendments to the ADA. In the case of a disability, an unpaid leave of absence is a recognized form of reasonable accommodation.

Approved time off work is not required, although it may be advisable where no serious health condition exists, such as (a) where an employee feels fine but does not want to come to work for fear of contagion, or (b) where a child is not sick, but the parent chooses to keep them out of school or the school closes because of flu outbreak.

2. If we approve time off work, do we have to pay the employees?
No. However, remember your employees that are exempt for FLSA overtime purposes. In order to maintain exempt status, you must pay the employee’s full salary in any week where they perform any work. One exception is that you are allowed to make deductions from the salary for full day absences due to sickness, if you have a plan that provides wage replacement benefits for sick days (sick leave, PTO, etc.).

3. Can we require a doctor’s release or medical examination before allowing an employee who has traveled to Mexico, or who we think may otherwise have been exposed to the H1N1 virus, to return to work?
It depends. If the employee has actually contracted the swine influenza, the ADA probably allows you to require (a) a doctor’s note, or (b) a medical examination, or (c) to require the employee to be symptom-free for a specified period of time, before allowing the employee to return to work. The ADA allows employers to require these measures if there is objective evidence that the employee’s medical condition would (a) impair their ability to perform the essential functions of their job, or (b) pose a direct threat to safety in the workplace. Arguably, the return to work of a person who has actually been infected by the virus would be a reasonable basis of a safety and health threat.

On the other hand, if the employee has not contracted the flu, and there is no reliable evidence that they pose a known threat to the workplace, you probably can’t require a doctor’s note or medical examination. The EEOC issued a Guidance some time ago in which the EEOC stated that medical inquiries or medical examinations of current employees (whether disabled or not) are prohibited under the ADA unless they are “job-related” and “consistent with business necessity.” This means that the employer must have a reasonable belief, based on objective evidence, that the employee is unable to perform the essential functions of their job, or that they pose a direct threat to the workplace, because of their medical condition. Any employee may challenge a medical examination requirement on these grounds. In this context, it may be difficult to meet the requirement for “objective evidence” of a threat for a person who is not known to have contracted the virus. If you feel you must do something, the alternative of requiring the employee to stay off work for a prescribed period, to be sure they haven’t contracted the influenza, is less dangerous (especially if the employee is paid while off work at your direction).