The flu season is here, with a vengeance. The Detroit
News has an article discussing
how Michigan employers are dealing with the impact on their employees and what
they are doing to combat the effects. Encouraging employees to get flu shots,
at the employer's expense, and emphasizing the use of
hand sanitizers seem to be the first line of defense.
Remember the anticipated H1N1 pandemic concern? Many employers developed
policies and procedures to deal with the expected impact which never
reached the level anticipated. It is time to find those policies and procedures
and to review them for use this year.
Employers can also refer to policies and procedures that were prepared in
anticipation of the H1N1 pandemic by the Centers for Disease Control, the EEOC,
and the Department of Labor. The CDC created a handbook
for employers to use. Among the suggested actions is to consider are
sending sick employees home; encouraging sick employees to remain home until 24
hours passed from the last time they had a fever; and if the employee is very
ill, encouraging to stay home at least 7 days. The EEOC had created a guide for pandemic
preparedness and the ADA. The guide stated that an employer who tells an
employee with the flu to go home is not taking a prohibited disability related
action. In addition, an employer may inquire whether an employee has flu like
symptoms without violating the ADA. The Wage and Hour division of the
Department of Labor created questions and answers concerning
pandemic flu and the FMLA. The division encouraged employers to have a plan
which could allow sending employees home provided the action was not based on
any other discriminatory basis.
So what should employers do now that we are in the midst of a severe flu
season? Employers should review plans made for the H1N1 pandemic and
advise employees of what is expected of them and what actions the employer
intends to take. The plans should address the issues of sending sick employees
home and encouraging them to stay home until well. It is the beginning of the
year, and many employers have re-loaded employee personal time off
("PTO") accounts. Employees should be encouraged to take those days.
Unfortunately, many employees do not want to use PTO early in the year because
those days are being saved for time off in better weather. As a result, the
sick and contagious employee shows up for work and intends to tough it out
until well. What does an employer do? Hopefully, the employer has
communicated what its policies are. Sick employees are sent home. If an
employee has to be present because of work considerations, that employee
is segregated from the rest of the work force. The feasibility of
working from home on a case by case basis can be considered. A review of
attendance policies is appropriate to see if there is a prohibition against
excessive absenteeism, and if so, whether an exception can be made for flu
The bottom line for employers is to have a plan and to communicate it to the
employees. While one would assume common sense would resolve many issues,
common sense can become lost in the consideration not to use PTO.
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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