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Most Frequent Swine Flu Legal Questions Answered

By Allen Smith  5/11/2009
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MIAMI—Employers had good news in early May as it appeared that the swine flu would not be as virulent or deadly as some initially feared. But the outbreak’s swift spread should be a wake-up call for employers to make sure they’re prepared if it returns with a vengeance in the fall, Stephen Woods, an attorney with Ogletree Deakins in Greenville, S.C., said on May 7 at the firm’s 2009 Workplace Strategies Conference here.

A former HR professional, Woods joked that he enrolled in law school soon after the Family and Medical Leave Act (FMLA) was enacted so he wouldn’t have to deal with the law. That didn’t work though, because as a lawyer Woods now deals with the FMLA on a regular basis, including in response to the deluge of questions he has received about the swine flu.

Woods and Melissa Bailey, an Ogletree Deakins attorney in Washington, D.C., shared some scenarios based on the most common swine flu questions they have been asked recently.

‘I’m Sick But Coming In Tomorrow’

In one scenario, Woods introduced conference attendees to Caroline, who calls her supervisor to say she won’t come to work today because she has just returned from a business trip to Mexico and has a fever, respiratory problems and conjunctivitis. But she says she has a lot of work to do and will be in tomorrow. Caroline’s supervisor tells her not to come in until her doctor confirms that she does not have the H1N1 virus, or swine flu.

The H1N1 flu likely is a serious health condition covered by the FMLA, but the FMLA permits involuntary FMLA leave, Woods said. “We’ve all had employees who say they do not want time to count as FMLA,” he added. “That’s not their call to make. That’s your call to make.”

However, if the employer counts time away as FMLA, at the end of the FMLA leave, the employer usually has to return the person to his or her job. The FMLA does not have any direct threat exception like the Americans with Disabilities Act (ADA), he noted.

Suppose Dr. Feelgood says that Caroline can come back to work on Friday, but you prefer that she return on Monday just to make sure the flu has run its course. The employer cannot require involuntary FMLA at that point. However, Woods said the employer still could require that the employee stay out on involuntary leave, as long as it did not count the extra time off as FMLA leave.

As for the ADA, Woods did not think it would apply in most instances of the swine flu, even under the more expansive “regarded as” portion of the ADA’s definition of disability under the recent ADA Amendments Act (ADAAA). However, he noted that the ADAAA has been in effect only four months and that its new definition of disability has not yet been interpreted by many courts.

Paid or Unpaid Leave

Another common question Woods has been getting is whether employees have to be paid if they’re required to stay home because of concerns about swine flu. Woods’ answer has varied depending on whether employees are exempt or nonexempt. For nonexempt workers, the time away can be unpaid, subject to employers’ paid leave policies.

For exempt employees who don't have available paid leave, time away from work when an exempt employee is absent for one of more full days for personal reasons or due to sickness can be unpaid as long as it is in full-day increments. Contrast that with time off that is mandated by employers when there is a furlough. Then, the time away from work for exempt employees can be unpaid only in full-pay week increments. Woods cautioned that this means an employer’s full week.

So, if an employer forces exempt employees to stay home from Wednesday to Wednesday and the employer’s workweek runs from Monday through Sunday, the exempt employees would have to be paid. Woods cautioned that state laws might have requirements beyond those of the federal Fair Labor Standards Act.

Take a Deep Breath

In an attempt to protect employees’ health, some employers have made respirators available to employees who’d like to wear them, Bailey said. Unlike masks, which might prevent an infected person from infecting others but are less likely to prevent a well person from getting the swine flu, respirators really can prevent someone from transmitting the H1N1 flu and from getting it.

However, Bailey said, some employers have purchased the respirators and made them available without taking into account in advance their resulting obligations under the Occupational Safety and Health Act (OSH Act) and Occupational Safety and Health Administration (OSHA) regulations. If an employer decides voluntarily to give employees respirators, then OSHA’s respirator protection standard (29 C.F.R. §1910.134) applies. This standard requires an employer to determine that the respirator does not provide any additional hazard and to provide a copy of Appendix D to the standard to employees. Also, if an employer makes available something beyond dust/surgical masks, the employer must ensure that employees are medically able to wear the respirators and know how to use them.

For more severe outbreaks, should an employer make the use of respirators mandatory, the employer must have a written program, and many other OSHA requirements apply.

OSHA 300 Log Reporting Requirements

If someone catches the swine flu at work from a co-worker, employers probably must record the illness on the OSHA 300 log, Bailey said. The common flu ordinarily wouldn’t have to be reported if spread from worker to worker, but Bailey said she thinks that the swine flu is different in light of the guidance OSHA has made available on it. And she said no one is asking OSHA point blank for an answer to whether the OSHA 300 Log would have to include entries for workers who catch the swine flu from colleagues, because “nobody wants an answer.”

She recommended that employers assume that the requirement would apply. Of course, if an employee contracts swine flu at home and not at work, the requirement clearly would not apply.

If the worker contracts the swine flu at work, the illness probably is covered by workers’ compensation, though the answer will depend on state law, Woods added. He said he got a call about an employee who had just returned from Mexico and did not know he was infected. Then he got sick and someone else at work later came down with the swine flu.

‘I’m Not Working Near Him’

Another common question Bailey and Woods are getting is what employers’ legal obligations are when an employee says that she’s concerned about a co-worker who works in a cubicle near her. The concerned worker says the co-worker seems to be sick but won’t stay home because of an important project and asks the employer to send the worker home until he feels better “for his sake, her own sake and the sake of everyone else in the office.” If you don’t send the worker home, the concerned employee says, she will stay home and everyone else might do so too.

Now the National Labor Relations Act (NLRA) comes into play. Woods reminded that the NLRA “applies to all employers, not just those that are unionized.” The concerned employee would be covered if the employee engaged in protected, concerted activity. Concerted activity likely is taking place when there is a safety concern, he remarked. Would the concerned employee’s actions be protected? Woods said they probably would, noting that the NLRA doesn’t require that the employee’s actions be reasonable. If the employee’s actions are reasonable, though, the employee gets the benefit of additional protections. Even if the concerns are reasonable, the employer could refuse to pay the concerned worker if she is nonexempt and stays away from work, he added. Workers with unreasonable concerns probably can be replaced permanently, he remarked, while those with reasonable concerns cannot.

‘Freaking Out’

A general counsel recently told Woods that “my folks are freaking out” after an employee returned from Mexico and started working, then felt bad and went out on leave. The employees all work closely together.
In situations like this, employers should “be mindful of the person’s privacy, but not to the exclusion of others’ safety,” Woods said. In this instance, the employer gave out limited information that was as tightly circumscribed as it could be. It told workers that an employee had H1N1 without specifying who, though he said everyone knew who. The employer noted the steps it had taken to prevent the spread of the flu. And it had everyone go home for two days while it sanitized the workplace.

Are You Really Ready?

The lasting lesson of the swine flu outbreak might be this: How well are employers positioned to respond to evolving, unpredictable threats?

Woods made several recommendations to employers to beef up their preparation for a pandemic, including developing policies for isolating and excusing employees who become ill at work, allowing unscheduled and nonpunitive leave for employees with ill dependents, considering greater income protection for leave during an outbreak, evaluating the circumstances under which employees who have become ill might return to work, and providing a means of reporting infection and providing medical surveillance for employees who contract the disease.

He recommended that employers review insurance policies, disability benefit protections, health insurance plans and leave policies in general. And he urged them to update records, including each employee’s emergency contact information, employees who have taken sick leave and a list of all persons who visit the worksite.

Also, consider establishing relationships with health care facilities. Proactive employers that form relationships with health care providers have a better chance to be at the front of the line for help if and when a pandemic really does hit.

Allen Smith, J.D., is SHRM’s manager of workplace law content.

Related Article:

Flu Outbreak Requires Swift Response from HR, SHRM Online, April 29, 2009

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