Employers are finding that the workplace issues arising from H1N1 are numerous, varied and complex.
“Any meaningful outbreak of H1N1 will cause significant absenteeism, which can cause issues relative to the ability of an organization to function properly,” says Craig W. Snethen, an attorney at Jackson Lewis LLP.
Consequently, more and more employers are seeking assistance in developing written H1N1 policies and creating business continuity plans during a time when they could experience substantial absenteeism.
Smart Business spoke with Snethen about the legal and practical impacts of H1N1.
What are the legal concerns of H1N1?Depending on the severity of the infection in any given employee, employers must be prepared to address H1N1 issues within the framework of the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Pennsylvania Human Relations Act (PHRA) and the workers’ compensation statute. Other compliance issues will also likely touch on the Health Insurance Portability and Accountability Act (HIPAA), the Occupational Safety and Health Act (OSHA) and the Fair Labor Standards Act (FLSA).
How should employers handle H1N1 in accordance with all those standards?
Employers may send employees home if they display influenza-like symptoms. If employees report feeling ill at work or call in sick, employers may ask them if they are experiencing influenza-like symptoms such as fever and chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Employers generally should consider encouraging employees to get the influenza vaccine rather than requiring them to take it. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents the employee from taking the vaccine. Title VII might also entitle some employees to an exemption where an employee’s sincerely held religious belief, practice or observance prevents him or her from taking the vaccine.
What legal pitfalls could employers face?
Measuring an employee’s body temperature is a medical examination. Therefore, it must be justified by being job-related and consistent with business necessity.
Employers may not ask employees who do not have symptoms of H1N1 to disclose whether they have a medical condition that could make them especially vulnerable to influenza complications. However, during a pandemic, an employer may ask an employee why he or she has been absent from work if it suspects it is for a medical reason.
Employers may need to rely on local clinics to provide a form, stamp or e-mail that certifies that an individual does not have the pandemic virus.
How should employers handle employees who have the illness?
With respect to the FMLA, employees who are ill with pandemic influenza or have a family member with influenza may be entitled to FMLA leave. As a practical matter, however, such employees should be urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.
Employers may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam or remain symptom-free for a specified amount of time before returning to work.
Specifically, an employer may require the above actions of an employee where it has a reasonable belief — based on objective evidence — that the employee’s present medical condition would impair his or her ability to perform essential job functions with or without reasonable accommodation, or pose a direct threat to safety in the workplace.
In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly applied policy or practice that requires all similarly situated employees to obtain and present certification from their health care provider that they are able to resume work. Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions must be applied. Employers should be aware, however, that fitness-for-duty certifications may be difficult to obtain during a pandemic.
What can be done to manage fear and anxiety among employees?
Communicating good hygiene and infection control practices will help keep your work force healthy. Share materials that educate employees on the fundamentals of pandemic influenza. Remind employees of the resources available to them, e.g., employee assistance programs, vendor provided benefit counseling, etc.
Information about your pandemic preparedness and response plan should be distributed to employees. Proactive communication will also help gain employee trust, and prevent employee fear, anxiety, rumors and misinformation. Ensure that your communications are culturally and linguistically appropriate. There are various platforms of communication, and the best ones for your employees will depend upon your business. Hot lines, dedicated Web sites, brochures, posters, and telephone trees are just a few ways to communicate pandemic status and actions to employees in a consistent and timely fashion.
Craig W. Snethen is an attorney at Jackson Lewis LLP. Reach him at (412) 232-0196 or firstname.lastname@example.org. Employers are encouraged to contact Jackson Lewis’ Disability, Leave and Health Management Practice Group at H1N1info@jacksonlewis.com for additional information on how to best handle pandemic-related issues. Employers also are encouraged to attend a free Webinar available at http://www.jacksonlewis.com/events/specialreport.cfm?elid=1437.