Trying to Reason During the Flu Season

Trying to Reason During the Flu Season

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 related absences.

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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