Ogletree Deakins Attorneys Provide Answers To Employers’ Most Common Questions

The H1N1 virus, commonly known as the swine flu, has grabbed headlines and worried millions. The federal government has taken an active role in helping to educate the public regarding prevention and containment of the flu. Most employers have felt the impact of H1N1, and even more are wondering the extent to which their operations will be affected as we approach the heart of the flu season. As a result, employers are preparing pandemic flu plans and taking precautions to prevent the spread of the H1N1 virus.

Laws about which employers should be aware in dealing with the H1N1 virus include the Family and Medical Leave Act, the Fair Labor Standards Act, the Americans with Disabilities Act, HIPAA, and OSHA, just to name a few. Because of the variety of legal issues involved in dealing with H1N1, Ogletree Deakins has prepared a detailed Q&A (a few of which are listed below) discussing the most common legal and practical issues.

May an employer involuntarily send home an employee who has or is exhibiting symptoms of H1N1? Yes. Of course, employers must be careful to apply such a practice in a manner that does not discriminate on the basis of other protected characteristics (e.g., gender, race, etc.).

May an employer send home an employee who is not exhibiting H1N1 symptoms but who has been in close contact with someone with H1N1 (e.g., a family member, close friend, etc.)? Yes, although employers should be aware that the CDC has indicated that in general business settings (e.g., non-healthcare settings where individuals in the workplace are not at a greater risk of contracting H1N1), employees without symptoms, but with sick family members, may report to work. Employers are free to meet with employees who have been in contact with those with H1N1 to remind the employee that he or she should practice good respiratory etiquette and handwashing and should stay home if he or she begins to feel sick, for the health and safety of the employee and his or her co-workers and the continued operation of the facility. Employers should apply any “send home” policy consistently.

When may an employee who has had H1N1 or H1N1 symptoms return to work? The CDC has indicated that in general business settings (i.e., non-healthcare settings where individuals in the workplace are not at a greater risk of contracting H1N1), employees may return to work 24 hours after no longer having or exhibiting signs of a fever (100° F), without the aid of fever-reducing medications (i.e., anything containing ibuprofen or acetaminophen). This is a change from the prior CDC guidance to stay out of work for seven days after the start of the illness or 24 hours after no longer having a fever (whichever is longer).

May an employer “dock” an employee for time away from work for H1N1, if he or she has exhausted vacation/PTO? For non-exempt employees, yes. For exempt employees, it depends on whether the absence is initiated by the employer or by the employee: (a) if initiated by the employee, the employer may dock the exempt employee for full-day absences only; (b) if initiated by the employer (e.g., “you must stay home because of a sick relative, even though you are willing to come to work”), the employer may dock the exempt employee only for full seven-day absences that coincide with the employer’s pay week.

Is H1N1 automatically an FMLA-covered serious health condition? No. If H1N1 does not satisfy the regulatory definition of a “serious health condition,” it is not a serious health condition, and employers should not count the absence against the employee’s 12 weeks of FMLA leave. Employers should evaluate any applicable state mini-FMLAs to ensure they do not contain different or additional require-ments or provisions.

May an employer disclose an employee’s actual or probable H1N1 diagnosis to others? The EEOC has taken the position that H1N1 symptoms or an H1N1 diagnosis is considered confidential medical information which an employer can disclose to only a limited group, including supervisors (so that the supervisor can implement necessary work restrictions for public health and safety reasons), first-aid personnel, and others not relevant in the current H1N1 context. This group does not include co-workers, patients, or customers – i.e., those to whom an employer likely would want to disclose this information.

Despite this position, some (though not all) courts have held that employee voluntary self-disclosures (i.e., when the employee or his or her relative tells an employer that the employee has H1N1 or is ill) are not covered by this prohibition. Additionally, given the widespread and far-reaching nature of the H1N1 pandemic, an employer may be able to argue that its failure to disclose an employee’s H1N1 status to co-workers, patients and/or customers is a direct threat to the health of co-workers, patients, and/or customers, by putting them at risk of not seeking treatment in a timely or appropriate manner, especially if any of the co-workers or customers is among the group at higher risk of developing complications from H1N1 (e.g., pregnant women, those with asthma, etc.) or is a patient in a health care setting. Because of the EEOC’s stated position on this issue, employers should consult with counsel before making any disclosures of an employee’s H1N1 status to co-workers, patients or customers.

Employers also should evaluate any applicable state privacy law or state mini-ADA to account for different or additional requirements or provisions. For a full list of the 26 practical Q&As, please click here.

Note: This article was published in the September/October 2009 issue of The Employment Law Authority.

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