EMPLOYER CLIENT ALERT: November 2009

Legal Considerations for Employers Adopting an Influenza Pandemic Plan

By Linda Day, Esq.

The U.S. Department of Health and Human Services (HHS) Centers for Disease Control (CDC) is recommending that employers take action now to decrease the spread of seasonal flu and H1N1 flu and to decrease its impact on the workplace by developing an Influenza Pandemic Plan. Some may question whether it is worth the time and energy to do so. Pandemic policy planning is simply another form of business continuity planning and will be useful for the employer in the event of bioterrorism threats and other possible pandemics. A good pandemic plan can decrease the potential financial impact on the business by decreasing the spread of the illness which will help with absenteeism and decreased productivity. A good pandemic policy can also minimize business interruption by planning for the absence of key employees and key suppliers. Finally, under the Occupational Safety Health Act (OSHA), employers are legally obligated to provide a safe and healthy work environment for employees free of known hazards.

The measures that employers are being urged to adopt may affect existing policies regarding attendance, leave, paid time off (such as sick time and vacation time), wage and hour policies, loan and pay advance policies, and electronic communication policies. In considering which measures to adopt, employers should keep three things in mind. First, all measures adopted should be for the purposes of protecting employees and ensuring continued operation of the business. Second, policies and procedures should be fully compliant with state and federal laws. Third, all policies should be uniformly applied.

Businesses will be affected not only by the illness of their own employees, but also by its impact on those employees who are primary caretakers and public transportation users. For example, public health officials may call for ”social distancing” (increasing the physical distance between people), which could include closing schools and daycare centers, and cancelling non-essential travel to put more physical distance between people. Employers can establish policies and practices that are responsive to requests for social distancing by allowing employees to telecommute or by working staggered shifts.

Employers considering allowing employees to work from home should be mindful that telecommuting carries a risk of exposure to wage and hour claims by non-exempt employees for overtime because it is difficult to effectively monitor the number of hours worked by employees who work from remote locations. To avoid off the clock or overtime issues, employers should consider requiring employees (1) to perform work only during specified hours; (2) carefully record and submit documentation of time worked; and (3) ask for and receive permission prior to working over 40 hours per week.

In addition to wage and hour exposure, employers should examine their electronic communications policies to determine if they are sufficiently broad to cover communications issued from a home computer while the employee is signed on to the employer’s network. Does the electronic communication policy offer sufficient protection for the employer’s confidential and proprietary information?

Travel restrictions raise another measure which public health officials may recommend. Employers should develop policies that they will enforce uniformly. They will also have to consider whether they will discipline employees who refuse to travel for fear of contamination, and whether they will treat a blanket refusal to travel differently from a refusal to travel to an influenza hot spot. The latter may be a legally protected refusal to engage in an unsafe activity, whereas the former may be insubordination. Travel expense reimbursement plans may also be affected by travel restrictions. The employer should determine in advance if it will reimburse employees for accommodations if an employee becomes stranded away from home due to travel restrictions imposed by the government.

Can an employer refuse to compensate an employee who has already exhausted their allotted paid time off? This policy will have a direct impact on the employer’s existing policies regarding sick days, medical leave, and family leave. With regard to sick leave, the Fair Labor Standards Act (FLSA) does not require sick pay in the first instance. Sick time is a benefit that is offered at the sole discretion of an employer. Thus, there is no legal requirement that an employer provide additional paid sick days during a pandemic. Employers may want to consider advancing paid time off that the employee has not yet earned. Whatever the policy is, the employer must apply it uniformly to all employees to avoid claims of discrimination.

Employers should provide any employee forced to stay home by the employer with the necessary forms to apply for workman’s compensation claims for forced days off. Employers should make sure workers’ compensation coverage is in place in the event employees contract H1N1 and make negligence claims against the employer. The issue likely to be raised by workers’ compensation carriers will be causation, i.e. whether the employee contracted the H1N1 virus from the workplace.

Employees who are sick themselves, or who are caretakers, may request leave to care for family member with the H1N1 flu. The focus when reviewing such requests under the Family Medical Leave Act (FMLA), the New Jersey Family Leave Act (FLA), and the Paid Family Leave Act (PFLA), is whether the person has a “serious health condition.” The regulations promulgated under the FMLA provide guidance. A serious health condition involving continuing treatment by a health care provider includes a period of incapacity of more than three consecutive, full calendar days, AND treatment (an in person visit) by a health care provider on at least one occasion, within seven days of the first day of incapacity.

Leave for the H1N1 virus is made trickier than usual because the CDC is encouraging people infected with the H1N1 to stay home, and not to seek medical treatment, to avoid further spreading the disease. The CDC is also encouraging employers not to require medical certifications.

It is up to the employer whether to require a medical certification from a health care provider, however. Most employers’ leave policies do require medical certifications to avoid abuse of leave benefits. If the employer wishes to do so, the employer could tweak its FMLA policy as part of its H1N1 pandemic policy to provide that during the H1N1 pandemic, the employer will suspend its requirement for the medical certification. If the employer is going to suspend the requirement for medical certifications, this should be done across the board for all leaves applied for during this time. The risk to the employer is abuse of leave provisions by those who are not really sick.

Can the employer require an employee who has returned from an influenza hot spot to stay home until it is clear they are not infected? A related question challenging employers is whether it can force employees who exhibit influenza symptoms to stay home, and if so, under what circumstances. The Equal Employment Opportunity Commission (EEOC) recently provided guidance. During a pandemic, an employer covered by the Americans with Disabilities Act (“ADA”) may send employees home if they display influenza-like symptoms, as long as there is objective evidence that the illness is serious enough to pose a direct threat. A direct threat in the workplace must be based on objective, factual information, “not subjective perceptions… or irrational fears” about a specific disability.

There are four factors to consider in determining whether there is a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. If federal, state, or local government authorities determine that the H1N1 virus is just like the regular flu, no direct threat would be posed. If it is determined by public health officials that the influenza pandemic is much more severe, then a direct threat would be posed. Accurate and timely public health information is critical to an effective ADA-compliant pandemic plan.

When employers begin pandemic planning, a common ADA-related question is whether employers may survey the workforce to identify employees who may be more susceptible to complications from the pandemic than others. The ADA regulates employers’ disability-related inquiries and medical exams for all employment applicants and employees, including those who do not have ADA disabilities. An inquiry is disability-related if it is likely to elicit information about a disability. An inquiry about symptoms of a cold or seasonal flu is prohibited, while questions about whether an employee has a compromised immune system are not, since a compromised immune system is related to disabilities such as cancer or HIV/AIDS.

There are, however, ADA compliant ways for employers to identify those employees who are more likely to be unavailable for work in the event of a pandemic. The ADA-Compliant Survey attached is compliant with the ADA because it provides the employer with information about how many employees will likely be absent for any number of reasons (impact on public transportation, caretaking responsibilities, or disability) in the event of a pandemic, without making disability related inquires. The employee is not required to specify the reason for his or her absence.

Employers must keep themselves well informed with information about the spread and severity of the influenza pandemic. While the HHS, the CDC, and the World Health Organization (WHO) are the definitive sources of information about the influenza pandemic, employers should coordinate with state and local authorities so that timely and accurate information can guide their responses.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job related and consistent with business necessity. When an employer has a reasonable belief based on objective evidence that an employee’s ability to perform essential functions of the job will be impaired by medical condition or an employee will pose a direct threat due to medical condition, it may inquire if the employee is experiencing influenza-like symptoms. All information about employees must be kept confidential in separate files.

Disabled employees susceptible to infection due to compromised immune systems may request accommodations such as working staggered hours or telecommuting to reduce risk of infection. The employer must engage in an interactive process with the employee to determine the needs of the employee and to evaluate whether the requested accommodation is reasonable. In doing so, the employer must consider whether the requested accommodation poses an undue hardship for the employer. If it does pose an undue burden, the employer is not required to provide it but the employer and employee should cooperate to identify an alternative reasonable accommodation.

Employers who, as part of their pandemic prevention plan, want to identify employees who have H1N1 or who are especially susceptible to getting the H1N1 virus must be very careful about how they go about acquiring this information. For example, forcing an employee to have his temperature taken (“medical exam”) and asking an employee to provide information that may reveal that the employee is disabled (“disability-related inquiry”), are closely scrutinized activities under the ADA.

Employers may have a health professional perform a medical examination of the employee if it is job related and consistent with business necessity. A medical exam or a disability–related inquiry is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform an essential job function will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition. The reasonable belief must be based on objective evidence obtained or reasonably available to the employer prior to making the disability –related inquiry or requiring a medical examination.

Employers who want to prevent the spread of the disease should proceed with caution. For example, while requiring the wearing of face masks and offering the flu vaccine at the office is fine, the employer may not require an employee to accept the flu vaccine.

In conclusion, all measures adopted should be for the purposes of protecting employees and ensuring continued operation of the business. All such measures must be uniformly applied and fully compliant with all state and federal laws.

EEOC

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

• If schools or day-care centers were closed, you would need to care for a child;
• If other services were unavailable, you would need to care for other dependents;
• If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
• If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).
  
  Answer: YES______ , NO_______
  

The Employment and Labor Practice Group

Thomas N. Ryan, Esq.	Michael S. Garofalo, Esq.	Ursula H. Leo, Esq.	Linda Day, Esq.