Joseph J. Lynett

Seasonal flu has received limited attention with Ebola recently dominating the media coverage. Each flu season, according to Flu.gov, nearly 111 million workdays are lost due to the flu. That equals approximately $7 billion per year in sick days and lost productivity. According to the Centers for Disease Control and Prevention (CDC), the timing of flu season is unpredictable and can vary from season to season. Flu activity usually peaks in the U.S. between December and February. However, seasonal flu activity can begin as early as October and continue to occur as late as May. The CDC recommends a yearly flu vaccine for everyone six months of age or older by October. Now is a good time for employers to review and develop their policies and plans for minimizing the spread of influenza in the workplace without running afoul of a complex array of federal, state and local laws. This article addresses many of the recurring legal issues and questions that arise during the flu season.

Employee Rights to Paid and Unpaid Leave

“Presenteeism” (i.e., being at work when one should be at home due to illness) is as much, if not more, of a concern during flu season as absenteeism. One sick employee at work can cause other employees to become ill. Thus, employers may find it useful to clarify policies that permit employees to take paid or unpaid leave due to the flu. Evaluating any attendance situation requires an employer to determine which statutes and employer policies apply. In general, the Family and Medical Leave Act provides covered employees up to 12 workweeks of unpaid leave during any 12-month period if the individual has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” In some situations, influenza-like illnesses may qualify as a “serious health condition” under the FMLA, but the majority of flu-related absences will fall under state and local leave laws or employers’ absence policies. (For additional information regarding the applicability of the FMLA for influenza-like illnesses, please refer to the Department of Labor’s Q&A concerning pandemic flu and the FMLA.)

In addition to the FMLA and comparable state laws, some states and municipalities require covered employers to provide paid sick leave to employees. Connecticut, for example, enacted paid leave law that requires employers with at least 50 employees within the state (excluding most manufacturing establishments and the nationally chartered tax-exempt organizations described in the law) to provide non-exempt “service workers” with paid sick leave of up to 40 hours per calendar year. Other states are considering similar legislative measures. New York City, Eugene, OR, Portland, OR, San Francisco, Seattle, several municipalities in New Jersey and Washington, D.C. have enacted some form of paid leave for eligible employees. California and the City of San Diego also enacted paid sick leave laws this year; however, given the date employees can first use accrue paid sick leave under these laws, the flu season likely will be finished.

Regardless of the law in your state, to minimize lost productivity during flu season, employers should consider implementing absence policies that encourage sick employees to stay home, including paid time off (PTO) for short-term illnesses. Employers should make sure employees understand what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them. PTO and other workplace policies should be consistently enforced for all employees.

Are Employer Flu Vaccine Requirements Lawful?

Although certain states, such as New York and Rhode Island, require some form of mandatory flu vaccination for health care workers, many do not. Thus, many employers, particularly those in the health care sector, also have instituted, or are considering, mandatory influenza vaccination programs for employees. Before implementing such programs, however, employers should consider possible disability and religious accommodation issues under the Americans with Disabilities Act and Title VII of the Civil Rights Act, as well as analogous state and local laws. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents the employee from taking the vaccine. Subject to undue hardship on the employer, Title VII may exempt an employee whose sincerely-held religious belief, practice or observance prevents him or her from receiving the vaccine. The requirement that an employee have a sincerely-held religious belief may not include beliefs that are common or in the mainstream of religious doctrine. For example, an employee who was a vegan brought a religious discrimination case against her employer after being terminated following her refusal to receive an employer-mandated flu shot because the vaccine was grown in chicken eggs. In addition, the Occupational Safety and Health Administration and National Labor Relations Board requirements may play a role for certain employers.

Employers’ Rights and Responsibilities under ADA

The Equal Employment Opportunity Commission’s technical guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” includes the following directions:

  • Employers may ask employees whether they have symptoms of a cold or the seasonal flu because it is not a disability-related inquiry.
  • Employers may use an ADA-compliant pre-pandemic employee sample survey for employers, which the agency has prepared. It combines medical and non-medical inquiries about the ability of an employee to come to work during a pandemic. The objectives are to provide employers with information they need to plan for a pandemic and to shield employers from receiving information about chronic diseases or illnesses that employees might have.
  • Employers may send employees home if they display influenza-like symptoms.
  • If employees report feeling ill at work or call in sick, employers may ask them if they are experiencing influenza-like symptoms, such as a fever, chills, and cough or a sore throat. Employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA.
  • Employers may require employees to follow infection-control practices in the workplace. For examples, see OSHA’s webpage, Workplace Safety and the Flu.

As the flu season continues, all employers may need to address these and other issues involving employees who are absent from, or should not be at, work due to the flu.

Jackson Lewis P.C. © 2014