Q & A: The swine flu
Q. “We are a small company with limited resources, but want to keep our employees healthy and take appropriate steps to limit the spread of swine flu. What do you suggest?”
A. It’s important to keep employees healthy, but it’s also important to keep the business going. The government has just released a helpful guide for small businesses. In it are 10 tips for businesses and 8 tips for individuals. Constant communication and reminders are key. Although everyone has heard the importance of staying home when sick, washing hands regularly, keeping common surfaces clean, and providing a work environment that promotes personal hygiene, it takes on increased importance when the message comes from and is reinforced by management.
Q. “Should employers make flu vaccinations mandatory?”
A. In general it is a good practice to educate and encourage employees and encourage vaccination; however, mandatory vaccination is fraught with legal risk. There are privacy issues, compliance with ADA, risk of responsibility for adverse reactions to the vaccination, etc. Exceptions exist, of course, particularly in the health care industry serving the public and it is best to review the policy and requirements with an attorney.
Q. “May an employer send home an employee who appears to exhibit flu-like symptoms?”
A.Generally yes, but state and federal disability law both address health-related inquiries an employer may and may not ask of an employee. Under state disability law and the ADA, an employer may only make health-related inquiries and require medical examinations of current employees when such inquiries are “job related and consistent with a business necessity.”
If an employer determines there is a business necessity and that potentially ill employees in the same job class must be sent home, all employees with flu-like symptoms must be treated accordingly. Employers must ensure that all employees are treated equally.
Additional information regarding health-related inquiries and medical certification can be found on the EEOC’s website.
Q. “If employees were exposed to H1N1 while traveling on business, can we require them to stay out of work during the incubation period?”
A.There are many factors to consider in asking employees to stay out of work. Under OSHA law, employers have an obligation to protect their workforce and taking steps to prevent the spread of the flu could fall under that requirement. However, you cannot discriminate and you must remain in compliance with FLSA wage laws.
Exempt employees must be paid for a full week if they perform any work in a week. Employers are only required to pay non-exempt workers for the hours worked, but morale and discrimination issues can come into play. Working from home or returning to the office with restricted access to others are options to consider. In all cases, communicate clearly the company’s policies and apply the policy fairly and equally.