According to the Centers for Disease Control, the flu season “most commonly peaks in the U.S. in January or February.” In its last weekly flu advisory report, the agency reported that flu is widespread in more than half of the country and many states are reporting severe outbreaks. The CDC says “the proportion of people seeing their health care provider for influenza-like illness [has] increased significantly, and is above the national baseline” for this time of year. Reports of increasing hospitalizations and death are coming in from across the country, many of them caused by the H1N1 strain. Also known as the “swine flu,” H1N1 is the strain of flu behind the 2009 flu pandemic. 
Having the flu is no fun. But even if you don’t get sick, you still can get a headache dealing with flu-related issues that arise when your employees aren’t so lucky. Mitigating the spread of flu among your employees creates potential legal issues. Bear in mind that the illness may implicate a number of employment laws, including the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Fair Labor Standards Act (FLSA). Thus, in responding to flu-related issues, you should consider the ramifications of each of these statutes to ensure you’re acting in compliance with their legal mandates. Here are some tips on how to best mind your legal p’s and q’s when dealing with employees this flu season.
Plan to prevent the spread of the flu
According to www.flu.gov, nearly 111 million workdays are lost each year because of flu. That translates into approximately $7 billion per year in sick days and lost productivity. Planning provides employers an opportunity to:
- Minimize disruption to business activities;
- Protect employees’ health and safety;
- Minimize potential legal liability; and
- Limit the negative impact of flu on the workplace, community, economy, and society.
The flu is characterized by numerous symptoms, including fever of 100 degrees or higher, cough and/or sore throat, runny or stuffy nose, headaches and/or body aches, chills, fatigue, nausea, and vomiting or diarrhea (common in children). Most persons with the flu will recover in a few days to two weeks. Nevertheless, serious complications may arise, including pneumonia, bronchitis, and sinus or ear infections. Additionally, preexisting conditions such as asthma, diabetes, and heart disease may worsen with the onset of flu.
The flu is spread when a person who is sick with it coughs, sneezes, or talks and droplets contaminated with the virus (1) come in contact with another person’s nose or mouth or (2) land on surfaces that others touch, allowing individuals to transfer the virus to their nose, mouth, or eyes. The Centers for Disease Control (CDC) recommends the following measures to protect employees:
- Require sick employees to stay home (at least 24 hours after their fever breaks);
- Send home employees who are sick (i.e., those with a fever);
- Institute infection-control procedures (e.g., regularly cleaning surfaces that workers touch frequently and encouraging employees to wash their hands often); and
- Encourage employees to get vaccinated.
Read the HR Hero Line article “Common question of the season: Can employees be required to take a flu shot?”
FMLA
Absent complications, the flu likely is not a “serious health condition” under the FMLA. However, it can be if it meets one of the “incapacity plus treatment” definitions. For example, the flu may be a serious health condition if an employee is incapacitated for at least three days and receives continuing treatment from a healthcare provider. “Treatment” doesn’t include the typical antidotes for the flu, such as drinking fluids or taking over-the-counter medication.
During a severe outbreak of the ailment, you should be prepared to ease requirements for employees to obtain FMLA leave. If an outbreak does occur, there will be a significant increase in requests for leave, and healthcare providers will be overwhelmed and unable to provide responses to medical certification requests as quickly as they normally would. As part of your plan, you want to encourage sick employees to stay home. Rigid adherence to FMLA certification procedures can have the opposite effect.
ADA
Even under the ADA Amendments Act’s (ADAAA) expanded definition of “disability,” it is unlikely that the flu is covered. That being said, reasonable accommodations may be necessary for individuals with disabilities who are at greater risk than others for experiencing complications from the flu. Those complications may trigger your ADA obligations. In that regard, you should consider alternative work environments―for example, changing an affected individual’s work location or schedule.
Title VII
Title VII comes into play when employers (typically those in the healthcare field) impose mandatory flu vaccinations. If you have such a requirement, you may need to exempt some employees as an accommodation. Individuals who may be affected include those who (1) are “disabled” within the meaning of the ADA; (2) are pregnant; or (3) have sincerely held religious beliefs prohibiting them from getting the shot.
Disabilities. An ADA-covered disability may prevent an employee from getting a vaccine. If that’s the case, you may require him to wear protective clothing (e.g., a face mask or gloves) so long as your demand is for legitimate nondiscriminatory reasons.
Pregnancy. Pregnancy-related impairments may be another reason to exempt an employee from mandatory vaccinations. The Equal Employment Opportunity Commission (EEOC) recommends that you not require vaccinations. Rather, simply encourage them.
Sincerely held religious beliefs. You may need to grant an exception to a mandatory vaccination requirement because of an employee’s sincerely held religious belief. The definition of “religion” is very broad and is not limited to traditional organized religions. Importantly, an accommodation isn’t necessary because of a secular philosophical opposition to vaccination.
Finally, an accommodation may be denied because of an undue hardship. The factors in assessing an undue hardship include:
- The level of public risk;
- The availability of effective alternative means of infection control; and
- The number of employees who request an accommodation.
If you are going to deny a request based on undue hardship, be prepared to justify your decision using those factors.
FLSA
When implementing flu plans (particularly sending home sick employees), you should keep in mind the requirements of the FLSA for salaried exempt employees. For example, if an exempt employee is sent home because he shows flu symptoms, you cannot dock his pay for a partial day’s absence; doing so will destroy the salary-basis element of the exemption. Also, if a flu policy prevents an exempt employee who is “willing and able” to work from working, the FLSA requires that he receive his full salary for days missed, provided he is absent for less than a full week.
Bottom line
Dealing with the effects of the flu on your employees is no fun. Flu season is here; don’t let the legal requirements for dealing with employees who contract the malady create an even a bigger problem. If you’re concerned that addressing a flu-related issue may prompt a lawsuit or other legal challenge by one of your employees, consult with your employment counsel before taking any action.
As with the flu, an ounce of prevention is worth a pound of cure.
Michael E. Barnsback is a partner with LeClair Ryan in the firm’s Alexandria, Virginia, office. He can be reached at michael.barnsback@leclairryan.com.