Are You Ready for H1N1 Flu at Work?
Flu Season, the ADA and Leave Policies
By Andrew P. Burnside
Coats Rose - New Orleans
The Americans with Disabilities Act (ADA) prohibits discriminating against employees because of a “disability”. A disability typically has a significant impact on a person’s life and involves a condition that is permanent. The ADA also regulates questioning an employee about a disability and employer-sponsored medical examinations and tests. The ADA is enforced by the EEOC, a federal agency. The ADA may affect how an employer with 15 or more employees deals with employees during flu season.
H1N1 or swine flu is a strain of flu which is said to be worse than “seasonal” flu. The EEOC takes the position that seasonal flu is not a disability and therefore not subject to the anti-discrimination provisions of the ADA but that H1N1 flu is a disability. The restrictions on medical tests apply in all situations, not just those concerning a disability.
According to the EEOC, an employer dealing with swine flu at work may take certain steps to protect the workplace. A company may send home an employee who displays flu-like symptoms. The ADA permits an employer to require employees to follow infection control measures such as frequent hand washing and coughing and sneezing into an elbow. And the EEOC says an employer may ask an employee about the nature of her symptoms—but an employer may not ask if an employee has an underlying condition (like diabetes) that might make him more susceptible to the flu or a secondary infection (such as pneumonia) from H1N1 flu. An employer may use “tele-work” to reduce opportunities for infection. More information is available from the EEOC and from the CDC.
H1N1 flu promises to challenge a company’s leave practices, especially paid sick leave. A company may want to consider changing its sick leave practices to address H1N1 such as adding more paid days (do you really want Bob back at work coughing on everyone and getting co-workers sick?), accelerating the accrual of leave time for new hires or increasing the amount of leave so sick employees feel some measure of job security and less pressure to return until they are well.
Leave policies may also be affected where your employee is well but has a dependent with flu to take care of such as a child. Again the same issues surface: the use of paid leave, the extension of unpaid leave, allowing new employees to use leave. Leave policies often do not address dependent care so that may be a topic to consider now.
If an employer is covered by the Family and Medical Leave Act (FMLA), many of the considerations concerning leave practices will transform from optional to mandatory. But FMLA is a topic for another day.