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Managing H1N1 in the Workplace

November 13, 2009
Labor and Employment Advisory

With the unprecedented flu season upon us, most employers are facing both legal and practical challenges in managing their workforce and applying their employment policies. In responding to these challenges, we have several observations and recommendations:

  1. The Centers for Disease Control has issued guidelines for businesses to plan and respond to the 2009-2010 flu season. These recommendations include strategies to decrease the spread of seasonal flu and H1N1 in the workplace and to help maintain business continuity during the flu season. We encourage you to review the CDC guidelines, which are available at
  2. Employee absences because of illness may implicate a number of state and federal employment statutes, including the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Depending on the severity of an employee's flu, the employee's condition may qualify as a "serious health condition" under the FMLA for which the employee may take FMLA leave. FMLA leave may also be available to allow an employee to care for the employee's spouse, child, or parent who has a "serious health condition." Remember that an employee need not specifically mention the FMLA to be entitled to take leave under that statute.
  3. The EEOC has suggested that individuals infected with the H1N1 virus would most likely not be considered individuals with a disability under the ADA but warned that the analysis might change for those individuals who suffer more serious complications. Under the ADA, an employer must reasonably accommodate an employee with a disability, which would likely include providing the employee with a leave of absence during the period of his or her disability.
  4. Many employers have no-fault attendance policies under which employees accrue attendance points for absences (except those protected by the FMLA). Such policies encourage employees to report to work, even when they are ill and may spread their illness to others at work. Employers should consider allowing employees with flu-like symptoms to stay at home without penalty under attendance policies. Rather than grant a blanket exception for anyone allegedly suffering from the flu, employers should engage in a "case by case" analysis of each situation and require documentation from a health care professional confirming the employee's symptoms and illness. As always, a "common sense" approach to employee illness is best.
  5. In addition to existing laws, Congress is considering new laws regarding employee leave. The Healthy Families Act (H.R. 2460, S. 1152) would require employers to provide employees with up to seven days of paid sick leave on an accrued basis. Separate legislation was introduced in the House of Representatives (H.R. 3991) that would temporarily mandate up to five paid sick days for employees sent home or told to stay home by their employer in relation to a "contagious" illness, such as the H1N1 virus. The Obama administration supports both bills. Varnum's labor and employment group will keep you advised as to the status of this legislation.

Please contact any member of Varnum's disability management team or any member of Varnum's Labor and Employment group with questions. 

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