Ebola may be grabbing headlines, but it’s the old familiar flu that’s more likely to cause headaches and chills for employers this winter. Flu.gov reports that nearly 111 million workdays are lost as a result of flu each season. That puts the tab at approximately $7 billion per year in sick days and lost productivity. 
Want to save your share of that $7 billion? Federal health officials advise encouraging your workforce to take an influenza vaccination. Encouraging sick employees to stay home is another way to lower the risk of illness. Regardless of an employer’s strategy for protecting health and productivity, employers need to keep legal issues in mind.
Mandatory vaccinations?
To ward off the threat of rampant illness and lost productivity, some employers consider mandatory vaccinations. Particularly in healthcare and education settings, some state laws even require employees to be vaccinated.
But employer-mandated flu shots “often face pushback from employees,” Tyler Wilkinson, an attorney with Axley Brynelson LLP in Madison, Wisconsin, advised employers in a March 2013 issue of Wisconsin Employment Law Letter. In addition, other downsides to a mandatory policy may surface. For one, he reminds unionized employers to consider whether a collective bargaining agreement allows mandatory vaccinations without union consent.
Another problem with requiring vaccinations is that employee health issues or religious beliefs make requiring flu shots more difficult. “Some employees may have legitimate allergies and side effects to vaccinations,” Wilkinson says. “Also, an employee may have a bona fide religious belief that precludes her from receiving a vaccination. Both health issues and religious beliefs are legitimate reasons to be exempted from a vaccination program.”
Send sick people home?
Employees sometimes feel pressured to go to work sick even if the employer encourages them to stay home. When flu-stricken employees are spreading germs throughout the workplace, employers may want them to leave but worry about appearing to discriminate against any employee sent home.
Christopher J. Pyles, an attorney with Sulloway & Hollis, P.L.L.C. in Concord, New Hampshire, offers advice in the November issue of New Hampshire Employment Law Letter. “General cold and flu symptoms do not herald the type of condition that rises to the level of a disability or create any protected classification like a condition that more significantly impairs bodily systems or functions could,” he says.
“Even when dealing with mere cold and flu symptoms, however, you should always treat employees the same and follow consistent practices and procedures,” Pyles says. “Additionally, if the need to send an employee home arises, document his or her file with a brief explanation of the decision. Keep in mind that sending an employee home under these circumstances is not a disciplinary action and should not be treated as such.”
FMLA, ADA issues
Flu doesn’t usually trigger the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), but employers need to keep those laws in mind. “Absent complications, the flu likely is not a ‘serious health condition’ under the FMLA,” Michael Barnsback, an attorney with the LeClairRyan law firm in Alexandria, Virginia, wrote in the March 2013 issue of Virginia Employment Law Letter. “However, it can be if it meets one of the ‘incapacity plus treatment’ definitions.”
Barnsback explains that flu may be classified a serious health condition if the employee is incapacitated for at least three days and receives continuing treatment from a healthcare provider.
Barnsback points out that during a severe flu outbreak, employers may receive a flood of requests for FMLA leave, and healthcare providers may be too busy to provide prompt responses to FMLA certification requests. “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,” he says.
Although flu isn’t likely to meet the definition of disability under the ADA, employers may need to provide accommodations for employees with disabilities who are at greater risk for experiencing complications from the flu. “Those complications may trigger your ADA obligations,” Barnsback says. “In that regard, you should consider alternative work environments—for example, changing an affected individual’s work location or schedule.”
Flu resources
The flu.gov website includes a section on how employers can plan for flu, including guidance on preparing workplaces for a flu pandemic and a pandemic flu planning checklist. The Centers for Disease Control and Prevention also offers flu information geared toward employers that includes information on prevention and vaccination.