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Swine Flu: Legal Q and A

September 1, 2009

by Nan Roytberg

This fall and winter, the U.S. Centers for Disease Control and Prevention expect up to 40 percent of Americans to be infected by the H1N1 virus (swine flu). Undoubtedly, this will have a major impact on employee attendance and productivity. Savvy AEs should develop and communicate office policies regarding paid and unpaid leave, privacy, -hygiene procedures, vaccines, travel restrictions, and telecommuting, now. These policies—which should be fair, clearly articulated, and uniformly applied—will help your association manage the potential legal liabilities and business interruptions -associated with a pandemic.

The following scenarios highlight the laws and policies you should know*:

Time off for the flu

Q. An employee with no remaining paid leave has been out for several days due to her son’s hospitalization for the swine flu. Must she be paid? How many days can she take off? Can she be fired?

In associations with fifty or more employees:

The Family and Medical Leave Act (FMLA) guarantees up to 12 weeks’ leave of absence for serious medical conditions or to care for a family member with a serious medical condition. The FMLA also guarantees that the employee can return to her position or an equivalent position.

Any individual under doctor’s treatment who cannot engage in normal activities for more than three consecutive days, regardless of hospitalization, could be considered to have a “serious medical condition.”

Although the FMLA would prohibit terminating this employee, it does not require that she be paid for time off. Review your existing association leave policies to see if you may grant pay, or partial pay, as an employee benefit. In addition, you may want to develop a more flexible policy that encourages employees to stay home and prevent the spread of a highly contagious disease like the H1N1 flu.

In associations with fewer than 50 employees:

Your association policy should cover extended leave. Absent a policy, the executive officer would determine how best to keep the association functioning as usual. It’s essential, however, to check with state leave laws, which may pertain to associations with fewer than 50 employees.

Q. An employee whose family members have the swine flu appears sluggish at work, can I send her home? How soon can she come back?

An employer may require an employee who has been exposed to the flu, and appears to be coming down with it herself, to stay away from work. However, the CDC’s current recommendation is that employees who take time off to care for family members with the H1N1 flu be allowed to return immediately if they do not have symptoms of the flu themselves. Those who have had the flu should not return for at least 48 hours after their fever has abated.

If your association policy does not already address the issue of attendance in the event of contagious disease exposure, update it. The policy should also state whether employees you send home involuntarily or that are under government-ordered quarantine should be paid for such time off.

Fear of catching the flu

Q. More than a third of the association’s employees have contracted the swine flu. Some have returned to work and others are still out on sick leave. The remaining employees want to telecommute for the next two weeks because they fear catching the flu. What are the association’s obligations?

Although your association has no legal obligation to permit telecommuting, the Occupational Safety and Health Act of 1970 imposes a general duty on employers “to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” Thus, if these employees refuse to come to the office because they have a “good faith belief” that doing so would pose “imminent danger” to them, OSHA may protect them from termination.

In any event, allowing the healthy employees to telecommute may be a good business decision if it helps ensure continuity of services to members. If you choose to allow telecommuting, your association should have a clear policy in place (see RAE’s -legal column on telecommuting policies at http://www.REALTOR.org/eomag.nsf/pages/hrsu09

Q. Can an employee who refuses to go to a convention in an area heavily affected by the swine flu be fired?

An employee who has a good faith belief that the required travel would pose an imminent health danger may be protected by OSHA. For instance, the Supreme Court of Connecticut (in Parsons v. United Technologies Corp.) held that an employee who refused to travel to Bahrain during a period when the U.S. State Department had advised Americans against travel, was wrongfully terminated in violation of public policy. Similarly, if your employee’s fear is supported by the advice of public health agencies that congregating in public may be unsafe, you may not want to terminate employment.
Develop a travel policy to address scenarios like these. For example, you may want to prohibit nonessential travel—as determined by the executive officer—to areas in which public health agencies report heavy outbreaks of any disease.

Q. Two employees are currently out sick with the H1N1 flu. Can I warn the other employees that they may have been exposed to the virus?

You should check your state’s privacy laws for guidance. Generally speaking, you should avoid public disclosure of personal medical information, including the names of specific employees who may have contracted the swine flu. You may, however, advise those who need to know such information (such as managers, HR personnel, and government investigators) to provide for the employee’s own safety or accommodation. Check with local public health agencies to determine if your association must report outbreaks among your employees to such agencies.

Planning for the flu

Q. I want all of my employees to get the flu vaccine. Can I require them to do so?

Although there is no law that prohibits an employer from requiring employees to be vaccinated, there are reasons why your association may want only to urge, not require, employees to obtain a flue shot. First, if an employee has an undesirable side effect from the shot, he may bring a claim against your association under worker’s compensation or tort law. Second, if an employee is against vaccinations for any reason, such as religious beliefs, your association will have to determine, in an even-handed, non-discriminatory manner, the legitimacy of the reason and whether and how to accommodate it.

If your association is able to obtain sufficient quantities of the vaccine, you could offer vaccinations to your employees on-premises, as NAR has done with seasonal flu shots. If you choose this route, secure qualified personnel to administer the injections, and have each employee sign a consent and release form that includes the appropriate warnings, questions, and waivers of liability.

Q. How can I require employees to practice good hygiene, which could stop the spread of the H1N1 flu virus?

Your association can, and should, require its employees to adopt infection control practices, such as washing hands properly, sneezing or coughing into the elbow, and disposing of tissues appropriately. You may even want to provide employees with bottles of hand sanitizer to keep on their desks, as NAR has done. Additionally, your association should regularly disinfect all office equipment, such as vending machines and copiers. n

*As with all of these scenarios, it’s important to check applicable state laws, as they may impose similar obligations on employers with fewer employees or extend greater protections. Your state laws will also tell you if unemployment benefits are due to employees required to stay home without compensation.

More Resources:
http://www.pandemicflu.gov/plan/businesschecklist.html
http://www.cdc.gov/h1n1flu/guidance/workplace.htm
http://www.eeoc.gov/facts/h1n1_flu.html
http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

Nan Roytberg is senior counsel at the National Association of Realtors® in Chicago.
She can be reached at
312/329-8248 or
nroytberg@realtors.org.