Feb. 8, 2017By Curtis Moore
Flu season is officially upon us, and so are the employment challenges that come with it. According to the Center for Disease Control, the flu causes U.S. workers to miss 111 million workdays and employers to lose $7 billion in productivity each year.
As such, many employers are challenged with implementing policies and best practices to help manage sickness in the workplace—particularly when it comes to employee absenteeism and avoiding the spread of influenza-like illness. Despite this being a recurring scenario, an interplay of federal and state laws and employment policies can obscure how employers should handle frequent absences during the winter months.
What are employees' rights to paid and unpaid sick leave?
Under the Family Medical Leave Act (FMLA), eligible workers of covered employers can take up to 12 weeks of unpaid leave during a 12-month period for specified family and medical reasons. This may include the flu in situations where complications arise and create a "serious health condition," as defined by FMLA—
for example, if an employee with the flu is incapacitated for more than three consecutive days and receives continuing treatment or is hospitalized overnight.
In addition, employees of federal contractors may be entitled to paid sick leave under an executive order that requires up to 56 hours of paid sick leave for employees performing work on certain federal contracts issued on or after Jan. 1, 2017. The standard for whether an illness is covered under the rule is very broad and covers not only the seasonal flu, but illnesses like the common cold or a stomach virus as well.
What are employers' rights and obligations?
Although neither state nor federal law requires employers to provide paid sick leave, many opt to provide it as a benefit to their employees. However, employers who have an established practice of or written policies providing such leave may become contractually required to do so. Though offering paid sick leave may seem costly, it can pay dividends during flu season and times of pandemic illness. It allows sick employees to stay home, reducing the risk of spreading contagious illnesses to other employees.
In addition, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations, such as a leave of absence, to individuals with disabilities, unless doing so would cause the employer to suffer an undue hardship. As a general rule, impairments that are "transitory and minor"—
such as the common cold and seasonal flu—
aren't considered disabilities under the ADA. However, before denying an employee's request for a leave of absence due to a flu-related illness, employers should consider whether there are underlying conditions that could be complicated by the flu or whether the flu itself is "sufficiently severe" enough to be considered a disability under the ADA.
Are employer-mandated flu vaccines lawful?
Although mandating flu vaccines is not unlawful per se, there are several legal considerations that employers must keep in mind. For instance, both state and federal anti-discrimination statutes, such as Title VII, should be considered. Individuals with certain disabilities may not be able to tolerate vaccination because of underlying medical conditions. Likewise, an employee's religious beliefs may prevent him or her from being vaccinated. In these instances, an employer may be required to provide a reasonable accommodation exempting the employee from vaccination.
Where there are religious or disability concerns, employers should conduct an individualized evaluation of the accommodation request. If an exemption is granted, employers may impose other infection-control measures, such as wearing a mask, provided it's not done for retaliatory or discriminatory reasons.
What steps can employers take to minimize the spread of sickness in the workplace?
Employers can voluntarily adopt paid sick leave policies aimed at preventing the spread of illness throughout the workforce. During a flu outbreak, employers are permitted to ask employees if they're experiencing flu-like symptoms, such as fever or chills, without running afoul of the ADA's restriction on disability-related inquiries. If an employee displays such symptoms, he or she can be sent home to protect the health of others.
In addition, employers can host voluntary, on-site flu vaccination clinics to promote wellness and minimize absenteeism in the workplace. Although the employer will bear the costs associated with paid sick leave and voluntary flu vaccines, the cost of prevention measures must be weighed against the staggering costs associated with lost productivity during flu season. Ultimately, an ounce of prevention may be worth a pound of cure.
Moore is an associate attorney at the Columbus office of Fisher Phillips, a
national management-side labor and employment law firm. He represents employers
in various types of labor and employment litigation, and provides counsel on
best practices for navigating day-to-day workplace issues.