Not all employers are following the Centers for Disease Control and Prevention’s (CDC) recommendation that they waive any requirement during the H1N1 flu pandemic that employees who have been ill with influenza-like illnesses show doctors’ notes before returning to work. The CDC made the recommendation out of concern that doctors’ offices may be too overwhelmed to provide notes clearing employees to return to work.
“I would go in the exact opposite direction,” said Marvin Goldstein, an attorney at Proskauer Rose LLP in Newark, N.J., during an Oct. 6, 2009, interview. In fact, he said that the CDC’s recommendation “makes no sense.”
Goldstein is recommending that employers that currently do not have a policy requiring a doctor’s note before an employee returns to work institute a policy demanding that employees receive documented clearance from a doctor before they return to work. He cautioned that the H1N1 pandemic “could become an extraordinary situation requiring extraordinary actions on the part of employers,” some of which they ordinarily would shy away from and which “might not be nice.”
For example, he said one of his clients has instituted a policy that any employee who knowingly comes to work with the flu is subject to termination. Another client requires its employees to notify the employer if any family member gets the flu and insists that the employee stay home a certain number of days before returning to work, despite the fact that the CDC provides that employees who are well but who have an ill family member at home with influenza can go to work as usual. Goldstein said that the employees for this company can work from home, even if they aren’t as productive there, or the company will pay them to stay home to insulate the workforce from the spread of the H1N1 virus.
Employers should think twice before not following the CDC’s recommendation on waiving a doctor’s note requirement, though, according to Steve McCown, an attorney with Littler Mendelson in Dallas. McCown said that in some parts of the country, such as the Pacific Northwest where the H1N1 virus already is widespread, doctors already are saying they cannot test for the virus and don’t have the time to write doctors’ notes, so employees can’t get any documentation. Employers don’t have the ability to control whether doctors write the notes or not, he observed. Employers that don’t adopt the CDC’s recommendation ought to consider notifying employees that they are not going to follow the CDC’s recommendation, he added.
Employee Relations Considerations
Companies should carefully consider possible employee relations fallout from going against the CDC’s recommendation on doctors’ notes, pointed out Stephen Woods, an Ogletree Deakins attorney in Greenville, S.C. Woods said that whether a company decides to waive the requirement may depend on how widespread the H1N1 flu is in an employer’s area and how strong the related strain on the health care system is. But he said, “Most employers should suspend their ‘doctor’s note’ requirement for H1N1 absences, given the CDC’s position on this.”
There might be exceptions in some industries, he added, particularly in health care, child care and education. “Even employers in these industries, however, should carefully consider the possible employee relations issues caused by going against the CDC recommendation,” he said. If the employer decides to insist on a doctor’s note, he agreed that “employers should acknowledge, not hide from, the CDC’s position and explain why the employer has chosen a more conservative approach, including reasons such as the health and safety of co-workers and clients and the continued operation of the business.”
Employers have options other than insisting on doctors’ notes, McCown told SHRM Online. For example, they might have returning employees sign forms confirming that they had the flu but were unable to provide written documentation that they were cleared to return to work.
Another possibility, suggested Christine Walters, J.D., SPHR, an HR consultant with FiveL Co. in Westminster, Md., is to try a “carrot vs. stick” approach. For example, an employer might waive the requirement for a doctor’s note, but for those who do bring a doctor’s note the absence would not be counted as an occurrence for purposes of counting absences. And the employer could require that those who do not bring in a doctor’s note stay home the minimum number of time recommended by the CDC, which she said is three to five days in most cases and at a minimum until an employee does not have a fever for at least 24 hours.
Dave Koesters, SPHR, HR manager at MANCOR Indiana in Yorktown, Ind., and a member of the Society for Human Resource Management’s Employee Relations Special Expertise Panel, said that his organization has a no-fault attendance system. “If an employee misses one day, they are given one occurrence. If they miss a second day, they earn a second occurrence unless they provide a doctor’s excuse stating they missed work due to an illness. So I don’t think we’ll be impacted.” He added, “I don’t see where an employer needs to insist on a doctor’s statement unless they don’t have an attendance policy. Employers should err on the side of safety and provide a safe work environment for all employees.”
Howard Mavity, an attorney with Fisher & Phillips in Atlanta, agreed, saying, “I had two family members with H1N1 before the Labor Day holiday. My wife, who is a health care professional, got my son in to see a doctor, and, after a long wait, they sent her home to do exactly what she was doing.” The health care system always becomes stressed during the flu season, he remarked, saying that “in Georgia, our pre-Labor Day surge showed how easily the system is overloaded. Doctors will not have or make time to see an employee who is already recovered so that they can sign a note. And even if they do, the tests are expensive and seldom used and inapplicable, so one could argue that in most cases there is no point to requiring a doctor’s note.”
Concerns About Leave Abuse
What about workers who seem to be gaming the system and getting Friday or Monday H1N1 flu, or H1N1 flu when discipline or termination is imminent, or when there aren’t any reported cases of H1N1 flu in the area? Woods said employers following the CDC recommendation “can and should monitor situations for abuse and respond accordingly—keeping in mind the usual discrimination risks in imposing different requirements on employees with different legally protected characteristics. Employers who spot abuse and want to require an employee to bring in a doctor’s note should analyze the situation to ensure the basis of the suspicion will hold up as a legitimate, nondiscriminatory reason to support the different requirement.”
Woods suggested that another way to minimize potential leave abuse is first to require employees to use paid leave for H1N1 absences and then, if they have exhausted paid leave, to advance employees paid leave from the next leave year. “With this ‘use next year’s leave today’ approach, employers can accomplish the dual goals of protecting employees from the devastating financial repercussions of being out with H1N1 while also ensuring they have some skin in the game and are legitimately absent,” he said.
As Mavity asked, “What’s better? Strict policing of leave such that an employee comes in sick and gets 40 percent of the workforce ill, or someone slipping through?”
‘A Matter of Trust’
But getting people to stay home may be particularly challenging following the recession. According to a Sept. 21, 2009, survey of 1,028 workers conducted by Angus Reid Strategies for Mansfield Communications Inc., 84 percent of American workers believe the recession creates more pressure to show up for work even if they are feeling sick.
“Employers need to clearly communicate with employees about such things as extended sick leave policy and procedures to minimize the spread of infection. During a pandemic, employers must become trusted sources of information and help employees make the right choices,” said Rob Ireland, partner at Mansfield Communications.
One risk in going against a CDC recommendation is that this might undermine employees’ faith in employers as a trusted source of information on the H1N1 flu. Walters said she would “generally recommend that employers follow CDC guidance” about the H1N1 flu.
Susan Kemp, an employment law consultant for the California Chamber of Commerce and CalBizCentral, agreed, noting that employers that adopt the CDC’s recommendation “will be helping to reduce the rush to emergency rooms and doctors’ offices, as well as encouraging employees to stay home when they are ill or contagious. This, in turn, should help prevent the spread of the flu in the employer’s workplace.”
Carroll County Public Schools in Westminster, Md., has decided to follow the CDC’s recommendation on waiving the doctor’s note requirement, said Jimmie Saylor, director of HR for the school system. Requiring doctors’ notes could result in “a real logjam,” she remarked, pointing out that requiring people to get doctors’ notes actually could result in spreading the virus even more.
Stephen Guthrie, assistant superintendent of administration for the school system, observed in an Oct. 8, 2009, interview that in a unionized setting communication with unions is necessary as well. The school district has five bargaining units for every class of employees except superintendents. At one forum, the schools went over the school system’s obligations as a leader in the fight against the H1N1 virus. Representatives from the school system also met with the officers of bargaining units to discuss employee policies in more detail. The bargaining representatives turned down the school’s suggestion that the waiting period for sick leave from the sick leave bank be reduced from 20 days to three or four days, Guthrie said. The employees, through their unions, run the leave bank, and he said that “we’ve found they are more stringent with those days than we would have been.”
Whether employers follow the CDC’s recommendation on waiving doctors’ notes is “a matter of trust between employer and employees,” according to Bennet Alsher, an attorney with Ford & Harrison in Atlanta. “If the employer has a good relationship with its workforce, it should educate employees and tell them to remain home for at least 24 hours after they are symptom-free. Tell employees that because of the burden on the medical/health care system, the employer is waiving the doctor’s note requirement for this situation only and will trust employees not to come in until they are symptom-free.”
Alsher said this decision of waiving doctors’ notes “goes hand in hand with the decision about whether to pay nonexempt employees when they are out. If the employer pays them, then employees will have no incentive to return to the workplace if they are still sick. If the employer does not pay them while out, then employees may feel they have to return to work in order to get paid.” He added that an employer can tell an employee who returns to work without a note that the employer reserves the right to send the employee home if the employee is sick or to require the employee to submit to a fitness-for-duty exam, provided the employer asks other similarly situated employees to submit such a note or submit to such an exam.
However, Goldstein countered that “trust is a nice concept, but not in the face of a pandemic.” He said co-workers of someone with the H1N1 flu aren’t likely to be happy with a policy of waiving the doctor’s note requirement and trusting employees if it means an employee who still is sick with the H1N1 virus comes in just because he or she doesn’t want to lose an extra day of pay. That could put at risk, for example, a worker who has a pregnant wife or baby at home, he hypothesized. For Goldstein, the employer should do what it can, including requiring a doctor’s note for return to work, to protect the health of employees.
Otherwise, he warned, a company may be on the hook for breach of contract if it is unable to provide goods and services in a timely fashion because of the spread of the H1N1 virus throughout its workforce.
Allen Smith, J.D., is SHRM’s manager of workplace law content.
SHRM H1N1 (Swine) Flu Resources