Swine Flu, Employment Law, and YOU!

A recent report from the Presidential Advisory Panel predicts that 1.8 million Americans will be hospitalized with the Swine Flu and as many as 90,000 Americans will die from it this flu season. While much of the focus has been on keeping children safe and healthy, seemingly little has been said about the impact of Swine Flu (or other pandemic flu) on employers.

For instance:

• What obligations does an employer have as to employee health and safety in the face of a possible pandemic?
• What liability may exist if vaccines are offered as a courtesy in the workplace, and unforeseen side effects result?
• Once an employee has exhausted sick leave, how are employers supposed to handle long-term illness related to the flu?
• What rights may an employee exercise in light of a potential pandemic flu in the workplace?
• How should employers handle distinguishing between real and suspected abuses of sick time during the flue crisis?

Employers may face many obligations to be in compliance with various federal and state regulations including Family and Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, Workers’ Compensation, employee privacy, and Whistleblower/retaliation claims. This flu season brings more than severe risks to the health of our employees; it also brings significant risks to the health of our companies. It’s important to plan NOW for what the government characterizes as a pandemic that will likely affect 30-50% of our population.

Schwarzberg & Associates is poised to assist employers with the myriad of issues they may face in attempting to prevent, manage, and respond to employment issues which may arise in the workplace.

Pandemic vs. Seasonal Flu
As a threshold matter, there are significant and important differences between the seasonal flu and a pandemic flu. According to the Occupational Safety and Health Act (“OSHA”), a seasonal flu is a periodic outbreak of respiratory illness in the Fall and Winter in the United States. A pandemic refers to a worldwide outbreak of influenza spread from person to person. In the early stages of a pandemic, people may not have a natural immunity to the virus and a vaccine may not be available. Therefore, the likelihood of infection increases as the virus spreads throughout the population. What is an employer’s liability and responsibility in the face of a pandemic flu?

The OSHA General Duty Clause
Under the OSHA General Duty Clause, (29 U.S.C. § 654, 5(a)1), an employer is required to provide a safe and healthy working environment to all employees. In a speech delivered to AFSCME National Nurses Congress on May 5, 2009, Jordan Barab, the Acting Assistant Secretary of Labor for Occupational Safety and Health explained that OSHA will rely on the General Duty Clause to protect workers from a pandemic flu. Barab explained that employers may be required to take protective measures such as providing employees with personal protective equipment (such as respirators). Barab also explained that OSHA will adjust its inspection scheduling priorities to ensure that employers are following the guidelines should a pandemic in the workplace become a reality. Consequently, employers may face new obligations to address and respond to the possibility of a workplace flu pandemic.

The costs to an employer for a violation of the General Duty Clause can be great. OSHA provides that any employer who willfully or repeatedly violates the requirements of the General Duty Clause may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation. Therefore, what must an employer do to ensure compliance with the General Duty Clause in the case of a workplace pandemic flu outbreak?

CDC/OSHA Recommendations – Workplace Pandemic Flu Planning
OSHA and the Centers for Disease Control (“CDC”) have issued guidelines and recommendations for employers to prepare for the 2009 HIN1 Flu including:

• Develop/review a pandemic flu plan;
• Connect with your local health department;
• Review sick leave policies to ensure that they allow flexibility and are designed to encourage employees to stay home when they have the flu without any negative consequences;
• Encourage sneezing and coughing etiquette;
• Allow employees to stay home to care for sick family members;
• Add a link to your company website so employees may find the latest flu information;
• Purchase flu supplies such as touchless garbage cans, alcohol-based soap and hand-cleaners, and workplace sanitizers (did you know that the flu virus can live on a hard surface for up to 8 hours?!);
• Require Personal Protective Equipment (“PPE”) such as respirators and/or surgical masks
• Encourage hand-washing; o Develop “social distancing” programs – these are alternative working and meeting arrangements that limit employees/customers face-to-face contact including installing sneeze shields, developing telecommuting program and policies, using webcasts and teleconferencing for meetings;
• Develop a cross-training program to ensure a continuity of operations.

Implications of the CDC/OSHA Recommendations
The recommendations of the CDC/OSHA have far reaching implications beyond the preparation and prevention of a pandemic flu in the workplace. Extended sick time for employees with a serious health condition and workplace fears of employees returning to work after having the flu can create extensive and challenging issues under the Family Medical and Leave Act (“FMLA”), Americans With Disabilities Act (“ADA”), Fair Labor Standards Act (“FLSA), and Florida Workers’ Compensation laws. Employers also face a potential increased exposure to workplace retaliation claims and claims of privacy violations.

The Family and Medical Leave Act
An employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve (12) weeks of continuous or intermittent leave under the FMLA. The Department of Labor’s 2009 revisions to the FMLA make it clear that an employer’s normal sick/time-off polices and absenteeism call-in policies will control how an employee reports his or her absence and whether that time off will be paid. In addition, employers retain the ability to require a medical certification for the serious health condition of an employee or a qualified family member.

It is important for employers to review their policies now (before there may be a large scale need to rely on them) to ensure that their policies are drafted clearly and up-to-date. For example, the requirements for reporting an unplanned absence should be made clear including identifying the appropriate person to contact and the method of contact (phone call, personal contact, voice-mail message, email etc.). In addition, employers that do not currently require a medical certificate may want to reconsider this policy decision. Requiring a medical certification from an employee returning from FMLA for his/her own serious health condition may assist an employer in demonstrating its efforts to comply with the OSHA General Duty Clause while preventing abuse and misuse of the FMLA.¹

The Americans with Disabilities Act
On May 4, 2009, the Equal Employment Opportunity Commission (“EEOC”) issued guidance with respect to the ADA (The Americans with Disabilities Act Amendments Act of 2008) and the H1N1 flu.² Under the ADA, an employer’s ability to inquire about an employee’s disability status is limited by when the employer makes the inquiry as follows:³

• Prior to the offer of employment – employers are prohibited from making any and all disability related inquiries and medical examinations
• Post-offer but prior to the employee’s first day of work – an employer enjoys the broadest rights with respect to disability related inquires at this stage of the employment relationship. An employer may make disability related inquires and require medical examinations so long as all employees in the same job category are also required to do so.
• After employment begins – an employer may make disability-related inquiries and require medical examinations only if the inquires and examinations are “job related and consistent with business necessity.”

Because of an employer’s limited ability to make disability related inquiries once an employee begins work, employers should reconsider their current post-offer medical examination requirements in light of an employer’s obligations under the OSHA General Duty Clause. A post-offer medical examination may be a prudent preventative measure to introducing a pandemic flu into the working environment. Under the ADA, an employer may also engage in any of the previously preventative measures recommended by the CDC and OSHA (such as requiring PPE).

However, while employers are limited in their ability to make individual employee disability inquiries, the EEOC guidance makes clear that an employer may make broad-brush, general inquires of its workforce. For example, an employer may ask its workforce whether certain conditions (such as school closing or reduced public transportation) will affect an employee’s ability to come to work.

Employers should also be very careful not to treat an employee as disabled, when he or she is in fact, not disabled. The ADA provides protection to employees who are actually disabled (unable to perform their essential job functions, with or without reasonable accommodation) or who are “Regarded as” disabled by their employer. Employees who are able to perform the essential functions of their job, with or without accommodation, are not disabled under the ADA (even if diagnosed with H1N1). However, where an employee poses a workplace safety threat, an employer may place the employee on leave. Employers should be careful not to overreact and place employees unnecessarily on leave thereby creating exposure to “Regarded as” claims.

Retaliation Claims
The landscape of potential retaliation claims has become more complex with the possibility of a pandemic flu affecting the workplace. For example, employers may find that identifying the point at which they may discipline an employee for refusing to come to work because he/she is afraid of a pandemic flu infection is not very clear. Employers may also grapple with entire departments that, in a “concerted action,” may refuse to work because of fear of infection. Such employees may be entitled to engage in a refusal to work under OSHA and/or the National Labor Relations Act “(NLRA”). Under OSHA, employees with a good faith belief that the workplace is unsafe may be entitled to refuse to work. In addition, under the NLRA, employees are entitled to engage in protected, concerted activity. Moreover, state Whistleblower laws may also provide protection to employees from termination for a refusal to work.

The Fair Labor Standards Act
The myriad of FLSA issues in the face of a workplace infection of a pandemic flu are broad and multifarious. Employees who are not infected and are able to work may find that they must “fill-in” for absent, infected co-workers and consequently, may find that their job descriptions are significantly altered. A change in a job description has implications for an employee’s exempt/non-exempt status and overtime compensation. Many employers may choose to allow certain categories of employees to telecommute and work remotely. While this measure is recommended by both OSHA and the CDC, it encompasses complex FLSA issues including measuring and tracking time worked for exempt employees⁴ and workplace safety/workers’ compensation issue. Employers who choose to allow employees to work remotely should work closely with legal counsel to develop a comprehensive and FLSA/workers’ compensation compliant telecommuting program.

Workers’ Compensation & Disability Insurance
Employees who face a greater risk for infection from a pandemic flu may be entitled to workers’ compensation and/or disability benefits for their medical expenses and lost wages if they contract the virus while on the job. Many unions, such as those representing healthcare workers, have already engaged in conversations regarding employee benefits for those who contract the virus. In addition, employers may realize an increase in workers’ compensation claims and their insurance premiums.

Private Medical Information (FMLA, HIPAA, ADA, Workers’ Compensation)
Employers are required to ensure that all medical information obtained about an employee (whether voluntarily revealed or obtained through an employer inquiry) is private and confidential and must be treated as such. For example, the ADA has a specific privacy requirement for all medical information obtained about an employee. This means that an employer may not relieve an employee’s fears of another employee’s illness by disclosing a medical diagnosis (i.e. “no, Crystal does not have H1N1”). An employee’s diagnosis with or without a condition is considered protected health information.

We Can Help!
Employers have long faced a myriad of laws and regulations governing the workplace and issues which stem from those laws. While pandemic flu is nothing new, the issues posed by Swine Flu and its expected widespread impact are uncertain and complex. Employers should be proactive in preparing to handle various scenarios likely to emanate from things such as increased use (and possible abuses) of sick time, increased exposure to litigation, and new (and in some cases more restrictive) government regulations. Our team of employment law compliance attorneys is here to help you develop policies, procedures, and proactive responsive measures to these and other employment related issues.

The CDC discourages employers from requiring doctor’s notes for employees who take time off for the flu. However, should the employee’s leave qualify under the FMLA, an employer is entitled to require a medical certificate so long as it is part of its FMLA policy and required of all employees who take medical leave.
Effective January 1, 2009, Congress amended the ADA emphasizing “that the definition of disability should be construed in favor of broad coverage of individuals, to the maximum extent permitted by the terms of the ADA, and generally shall not require extensive analysis.”
All employee medical information (whether obtained pursuant to an ADA allowable medical inquiry or voluntarily offered by an employee) is confidential medial information and must be treating as such.
Employers should note that the FLSA allows an exempt employee on FMLA intermittent leave to work a reduced schedule and be compensated on an hourly basis.

The opinions expressed in this e-zine are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Further, Schwarzberg & Associates does not give medical advice or engage in the practice of medicine. Under no circumstances do we recommend particular treatment for specific individuals and in all cases recommend that you consult your physician or local treatment center before pursuing any course of treatment.