Labor and Employment Legal Update Update on H1N1/Swine Flu Employment Law Issues and Pandemic Planning

Transcription

1 N O V E M B E R Labor and Employment Legal Update Update on H1N1/Swine Flu Employment Law Issues and Pandemic Planning Over the years, employers have handled outbreaks of Legionnaire's disease, SARS, bird flu, and seasonal flu. They have survived floods, fires, hurricanes, tornados, and other natural disasters. In response, many businesses have created crises management plans and, even during this latest outbreak of the H1N1/Swine Flu virus, employers have managed their workplaces to ensure continuity of business operations. Our pandemic team has experience advising large and small organizations in technology, financial services, healthcare, manufacturing, and other industries on how best to manage their workforces in response to pandemic flu and to continue business operations when a flu pandemic strikes. Common questions asked by employers include the following: Do employers really need to amend their existing leave policies to cover flu-related absences from work? The CDC recommends that employers allow sick employees to stay home without fear of losing their jobs. Most companies already have policies in place regarding sick leave or personal time off. These policies, however, may not provide the coverage or flexibility that employers and employees might need in the event of a significant flu outbreak. While t is no "one-size-fits-all" policy appropriate for every company, employers should consider the following: What has been your company's absenteeism rate during a regular flu season? Have your existing absence/leave policies been adequate for that? How will your company monitor unusual increases in absences? If you believe your existing leave policy is adequate, what will you do for employees who become sick after having exhausted their sick leave and personal days? Should your company consider enacting a "special leave policy" for flu-related absences? If so, how many days should be allowed? What will be the interplay between a special leave policy and existing leave policies and benefits? Should this policy expire when the flu season has passed? What kind of certification-if any-can you require for employees who claim to have the flu or flu-like symptoms? (It may be difficult for employees to get in to see their doctor quickly, so a doctor's note may not be feasible; employers also need to be careful about making medical inquiries that may violate the ADA and CFEPA.) Will the time off be paid or unpaid? If paid, will it be at the employee's regular rate or at a reduced rate, and how will you administer it? Does your organization have a short-term disability plan that may provide assistance to absent employees? How will you staff your workplace to cover for those who are absent? Is temporary staffing

2 available? Which job functions are critical to keep your business running? Employers subject to federal and/or state Family and Medical Leave Acts (FMLA) should also be aware that FMLA may apply to flu-related absences. Employees who work at a covered worksite and are otherwise eligible to take FMLA leave may be entitled to job-protected FMLA leave if their flu-related symptoms are severe enough to qualify as a "serious health condition." This generally means that the employee must be hospitalized overnight or incapacitated for more than three consecutive days and receive a certain level of treatment by a health care provider. Employers should have up-to-date FMLA forms and policies in place to ensure they comply with FMLA notice, designation, and certification requirements. Employers should also ensure that their FMLA policies are clear regarding whether employees are required to exhaust paid leave prior to going on unpaid leave. How should employers handle employees who exhibit flu-like symptoms at work but deny being sick and refuse to take sick leave? An employer may require an employee who exhibits flu-like symptoms to leave the workplace even if the employee denies being sick. The Occupational Safety and Health Act (OSH Act) requires employers to maintain a safe and healthy workplace and, specifically, to safeguard their employees from "recognized hazards" to their health or safety that may cause injury or death. An H1N1 flu pandemic could qualify as a recognized hazard against which employers must take action. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace to avoid the possibility of further infection because it will not be possible to quickly determine if workers who are ill have H1N1, seasonal influenza, or any number of other different conditions based on symptoms alone. As to whether disability discrimination laws might apply, requiring an employee to leave the workplace under these circumstances would not necessarily be considered a disability-related action under the Americans with Disabilities Act (ADA) because an individual who is exhibiting flu-like symptoms, without more, is not considered to be an individual with a disability under the ADA. If the symptoms of the virus become more severe, an infected employee might be considered to be an individual with a disability under the ADA. At that point, however, the employee might not be able to perform the essential functions of his or her job, or may be deemed to pose a "direct threat" to the health or safety of others. The "direct threat" determination should be based on assessments from the CDC or public health authorities. Currently, the H1N1 virus is not seen as posing such a threat for employees who do not have other risk factors, such as acute conditions or pregnancy. Employers must enact policies and procedures to maintain a safe and healthy workplace consistent with the OSH Act while preventing liability under antidiscrimination laws (such as Title VII of the Civil Rights Act, the ADA, and applicable state laws). In addressing an H1N1 pandemic, such policies and procedures should be uniformly enforced yet flexible enough to encourage sick employees to leave work and/or stay at home. The CDC recommends that employees with influenza-like illness remain at home until at least 24 hours after they are free of fever (100 F, 37.8 C, or greater), or signs of a fever, without the use of fever-reducing medications. Employers should also identify possible work-related exposure and health risks to employees. OSHA has developed tools to determine whether t are risks of work-related exposures and, if so, how to respond (see Employers also should be cognizant of the National Labor Relations Act in making decisions that impact their employees' wages, hours, or working conditions. In a unionized workplace, employers may be required to negotiate elements of their H1N1 flu strategy and, even in a nonunionized workplace, may face employee collective action with respect to their H1N1 flu strategy. How should employers handle employees who cannot work because they are caring for sick family members or babysitting children at home due to school closings? Some states currently require employers that provide paid sick leave benefits to allow employees to use a portion of such leave time to care for sick family members or for other family necessities. Under Connecticut law, for example, employers subject to the Connecticut FMLA must let employees use up to two weeks of accumulated sick leave to attend to a serious health condition of a child, spouse, or parent of the employee. Even if such leave time is not mandated, however,

3 employers may wish to consider amending their leave policies (or developing special flu-related leave policies) to permit employees to take leave to care for sick family members or for emergency child care due to school closings. Employers should ensure that their existing policies comply with applicable laws. For employers who are subject to the FMLA, an employee's need for leave to care for an immediate family member (i.e., child, parent, or spouse) may be covered by the FMLA if the family member is sick and the illness is severe enough to qualify as a "serious health condition." The FMLA does not apply, however, to situations w children, who are not seriously ill themselves, are home due to school closures. How should employers handle employees who refuse to come to work or ride public transportation for fear of becoming sick? Ordinarily, employees who refuse to show up for work may be disciplined in accordance with their employers' disciplinary policies; however, under the OSH Act, employers are required to provide employees with a workplace free from recognized hazards likely to cause death or serious physical injury. The OSH Act also prohibits employers from retaliating against employees who exercise rights under the act. Employees who refuse to show up for work when t is a "good faith" belief that exposure would put the employees in "imminent" danger of death or serious injury are protected from retaliation by their employers. Based on information available to date from the CDC and other government agencies, a good faith belief that exposure to the H1N1 virus could cause imminent death or serious injury is particularly germane for (1) employees with chronic conditions such as asthma, heart disease, diabetes, and diseases that suppress the immune system; (2) employees who are pregnant; and (3) employees who are over 65 years old. For these employees who may be at risk, and for other employees whose physical attendance in the workplace is not essential, employers may consider allowing them to take approved leave of absence or, w possible, to telecommute or work from home or an alternate location. Employers also are encouraged to assist employees who normally use public transportation in carpooling with other employees who live nearby. Employers also may want to consider, if practical, modifying work schedules to allow more flexible work and commute patterns. Some employers have been successful in allowing employees access to employer computer systems via remote access to facilitate the ability of employees to work from home or other approved locations. How should employers respond to employees who claim they can work from home and do not have to come into work? The analysis for determining whether to permit an employee to work from home due to an actual or perceived threat from the H1N1 virus is not so different from the analysis in the absence of the flu pandemic. Some employees may perform jobs that require their actual attendance at work. For those employees, employers should continue to require their attendance and enforce the company's attendance and disciplinary policies, unless an employee meets the test for protection under the OSH Act (discussed above). For employees whose actual attendance at work are not essential, their employers may consider, at least on a temporary basis through the end of the flu season, to permit those employees to work from home or at another approved location. Some of the factors employers may want to consider are (1) the technology capabilities of the employer, including the availability of remote access to computer systems and telephone coverage; (2) the type of work and whether the employee can perform that work efficiently outside of the workplace; (3) the experience the employer has had with other employees who have worked from another location; (4) the ability of the employer to protect confidential information or trade secrets outside of the workplace; (5) the employer's ability to monitor and track the time actually worked by employees; and (6) the employer's insurance policies and whether they cover losses outside the workplace. What are some of the risks from disciplining or discharging employees for refusing to follow company policies to minimize the spread of influenza? Given the number of reported deaths and serious injuries stemming from the H1N1 pandemic, employers can expect to encounter employees who refuse to comply with their employers' reasonable workplace policies. Many employers have waffled over whether to take disciplinary

4 reasonable workplace policies. Many employers have waffled over whether to take disciplinary action for fear that doing so would be an unpopular decision, considering the fears many people have regarding the H1N1 virus. Employers should recognize that the treatment of any employee under these circumstances may create a precedent for future disciplinary actions and may be used as the basis for a claim of discrimination or retaliation arising from any disparate treatment of similarly situated employees. To distinguish the treatment of employees during this flu season from other disciplinary actions taken before the onset of the H1N1 virus, or that may occur after the flu season, some employers have enacted policies that temper certain disciplinary actions during a limited period of time to coincide with the flu season. For example, an employer may want to temporarily suspend disciplinary policies that otherwise might call for immediate termination or other harsh discipline for employees who technically violate the employer's policies but whose actions might be softened by the risks posed by the H1N1 virus. In addition to legal risks for claims of wrongful discharge, discrimination, retaliation, or other employment claims based upon the particular facts, a prudent employer should consider business risks when disciplining an employee. Certain employees are difficult to replace because of their skill set or institutional knowledge. Some employees have leadership traits or other attributes, beyond their skills and job knowledge, that make them important to their employer. For those kinds of employees, an employer may want to consider the difficulty of finding replacements and, instead of meting out harsh punishment for failure to comply with the employer's policies, the employer instead may want to tone down the disciplinary action. If you do not have answers to these questions or need assistance getting the right answer for your organization, please contact a member of our H1N1 team. We can help you manage your workforce in light of developing federal and state employment laws and the potential impact they may have on your business operations. Our H1N1 Team Stephen W. Aronson Tel: saronson@rc.com Mitchell L. Fishberg Tel: mfishberg@rc.com Nicole A. Bernabo Tel: nbernabo@rc.com Catherine Moreton Gray Tel: cgray@rc.com Alice E. DeTora Tel: adetora@rc.com Jean E. Tomasco Tel: jtomasco@rc.com Our Labor, Employment, Benefits, and Immigration Attorneys Stephen W. Aronson Nicole A. Bernabo Alida Bogran-Acosta Bruce B. Barth David J. Burke Cynthia R. Christie Britt-Marie K. Cole-Johnson Frank F. Coulom, Jr. Alice E. DeTora Christopher S. Feudo Mitchell L. Fishberg Christopher F. Girard Katherine C. Glynn Michael B. Golden Catherine M. Gray Joshua S. Mirer Megan R. Naughton Jennifer R. Rossi Natalia A. Sharubina Elizabeth Smith Virginia E. Spiess Jean E. Tomasco Rita B. Trivedi Richard F. Vitarelli The information in this legal update should not be considered legal advice. Consult your attorney before acting on anything contained n.

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