H1N1/swine flu and the workplace

As I was watching the news this morning, there were numerous reports of H1N1 flu being reported at schools around the state.  Many experts expect that it will spread throughout the country, reaching pandemic proportions.  As the H1N1 flu continues to spread, it raises many issues for the workplace.  First, the question is how to prevent it’s spread.  The CDC’s website has a great deal of information addressing the prevention of the spread of the flu.  Wash your hands often, if you sneeze or cough, do it into a tissue and throw it away, sanitize surfaces (clorox wipes seem to work), and if you are sick, stay away from others for 24 hours after the fever breaks. 

Another issue is the impact of the ADA on the workforce in relation to the H1N1 flu.  At pandemicflu.gov, there is a FAQ section.  Questions can be asked of the workforce about the flu if done correctly.  The website sets forth the following:  "An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity)."  Before asking any of these questions, employers should review this website and/or consult with their attorney to ensure that the are in compliance with the ADA.

H1N1 flu may also have FMLA implications.   Assuming an employee qualifies for FMLA leave,  he/she may be entitled to FMLA leave if they are suffering from the flu.  The employee would need to be absent 3 or more days, and would have to be treated by a health care provider on at least 2 occasions or visit a health care provider 1 time, resulting in a regimen of continuing treatment under the supervision of the health care provider.

Practice Pointers  The experts are predicting that the Swine Flu will have a major impact across the country.  It is already being felt in Alabama in numerous schools and colleges, and is creeping into the workplace.  HR needs to prepare now, if it has not already done so, to cope with the problems that may be caused by the flu.  The problems may include extended absences, controlling the spread of the flu, and making sure that there is enough manpower to get the work done.  Don’t be tempted to permit sick workers, or their children, to be at the workplace.  Finally, treat all employees the same.  If an employee does not have any leave time left, and does not qualify for FMLA leave, do you provide additional paid time off? Unpaid time off? Termination?  Whatever the decision is, it must be consistently applied to all of the workforce. 

For more information, please contact:
Daniel J. Burnick

This is a publication of Sirote & Permutt, PC and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information only, and you are urged to consult an attorney concerning your own situation and any specific legal questions you may have. This message may be considered an advertisement or solicitation. The Alabama State Bar requires the following disclosure: No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.

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