Labor and Employment Practice: Swine Flu--A Potential Trap for Unwary or Unprepared Employers

September 2009

Swine Flu -- A Potential Trap for Unwary or Unprepared Employers

This flu season the H1N1 flu virus (the “swine flu”) could potentially reach pandemic proportions. As such, employers must be prepared to meet the challenges posed by a pandemic, such as absenteeism, interruptions in supply or delivery, or changes in commerce patterns. Employers must also be aware of the legal landscape facing them with respect to the issues created by the swine flu.

An Employer’s Duty to Provide a Safe Workplace

The Occupational Safety and Health Act’s General Duty Clause requires that employers provide a safe and healthy work environment. The Occupational Safety and Health Administration (“OSHA”) will rely upon the General Duty Clause to protect workers from the risks of swine flu in their employment. In the event of a pandemic, OSHA has indicated that it will adjust its priorities to ensure employers are adequately protecting their workers from swine flu.

Employers found to be in violation of the General Duty Clause are subject to monetary fines. If an employer willfully or repeatedly violates the General Duty Clause, OSHA will assess the employer a civil penalty of at least $5,000 per violation and potentially up to $70,000 per violation.¹

In order to prepare for a potential pandemic, OSHA issued guidelines for employers. Employer recommendations include, but are not limited to:

Developing and/or reviewing a pandemic flu plan;
Reviewing sick leave policies;
Working with employees to address leave, pay, transportation, travel, child care, absence and other human resource issues;
Purchasing flu supplies (i.e., touch less garbage cans, alcohol-based soap/hand sanitizer, tissues, and cleaning supplies);
Providing employees with access to the latest flu information, including information about medical care and benefits;
Implementing “social distancing” programs to limit face-to-face contact between employees and customers;
Developing a cross-training program to ensure continuity of essential functions.

In the event a pandemic occurs, employers may also have additional obligations placed upon them to address the situation.

Swine Flu and Employee Leave and Scheduling Issues

A swine flu pandemic would create many issues for employers regarding employee leave. First, if applicable, employees may be eligible for leave under the Family and Medical Leave Act (“FMLA”) if an employee or a qualified family member contracts swine flu. The FMLA generally applies to employers with 50 or more employees. An employee may be entitled to up to 12 weeks of unpaid FMLA leave from his or her employment if the employee (a) has a serious health condition or (b) is required to provide care for a qualified family member with a serious health condition. An employee who contracts swine flu (or whose qualified family member contracts swine flu) would likely have a serious health condition that qualifies the employee for FMLA leave. Because of this, employers subject to the FMLA are strongly encouraged to review and update their leave policies to comply with the FMLA and take advantage of its protections.

Second, as discussed above, OSHA guidelines with respect to swine flu encourage employers to review their current, and/or develop new, sick leave policies. An employer who is concerned with the possible effects of a swine flu pandemic can draft leave policies to provide or expand sick leave to employees, whether paid or unpaid. An employer can grant employees this leave through sick days or personal time off. Adjusting leave policies will encourage sick employees to take time off without fear of losing their job and, as a result, reduce the remaining employees’ exposure to swine flu.

Third, employers may want to consider alternative work arrangements to ease the impact of a pandemic. Employers can allow employees to telecommute from home to avoid the spread of the illness. Employers interested in such arrangements should create a detailed policy to cover telecommuting, especially the recording of work time. Employers may also consider flexible scheduling to stagger employee work times and minimize both face-to-face contact between employees and the risk of spreading the disease. To do so, employers must be acutely aware of the needs of their business and customers and should implement a policy to cover any flexible scheduling arrangement.

Swine Flu as a Disability?

Under the Americans with Disabilities Act (“ADA”), a person is disabled, if he or she has, has a record of, or is regarded as having, a physical or mental impairment that substantially limits one or more major life activities. Fortunately for employers, swine flu generally will not be considered a disability. The general rule under the ADA is that temporary, non-chronic impairments, with little or no permanent impact, are not disabilities. Further, the EEOC has identified influenza as an example of a non-disabling, temporary condition. Even though swine flu is not a disability, employers can create liability under the ADA by regarding non-disabled employees as disabled. As a result, employers must be careful to not treat employees who are (or seem to be) suffering from swine flu as disabled as an employer may create “regarded as” liability.

In addition, even though swine flu is not likely to be considered a disability, the ADA will still impact an employer’s actions with respect to a pandemic. Under the ADA, an employer’s ability to inquire about an employee’s disability status is determined by the timing of the inquiry:

Pre-offer of employment, an employer is prohibited from making any disability inquiry;
Post-offer, but pre-employment, an employer may make disability inquiries and require medical testing, so long as all employees in the same job category are required to do so;
Post-employment, an employer may only make disability related inquiries and require medical examinations if the inquiries and examinations are job related and consistent with business necessity.

Accordingly, employers must keep these limitations on disability-related inquiries in mind, even during a swine flu pandemic. Further, under either the ADA or FMLA, in addition to other federal laws, employers must ensure that employee medical information remains confidential. This applies to all of an employee’s medical information, whether it was obtained through a lawful employer inquiry or received from an employee voluntarily.²

Employers, however, are able to make general inquiries of its workforce without running afoul of the ADA. Recently, the EEOC issued regulations under the ADA regarding swine flu. In order to develop a pandemic flu plan, an employer may ask employees whether, in the event of a pandemic, the employees would be unable come to work if:

Schools or day care centers were closed;
Other services were closed to care for dependents;
Public transportation was unavailable to bring the employee to work; or
A member of the employee’s household was at a high risk for serious complications from the pandemic (i.e., pregnant or over 65) and the employee would be advised to not come to work.

These questions, however, cannot be raised individually, but only collectively. That is, “would any of these situations affect you?” And not, “which of these situations apply to you?”

Other Potential Employer Pitfalls in Planning for and Controlling a Swine Flu Pandemic

As part of its plan for a swine flu pandemic, OSHA encourages employers to cross-train employees to allow the business to continue to operate in the event that employees are unable to work. Employers, however, must be sure to avoid running afoul of the Fair Labor Standards Act, if and when such cross-training programs are implemented. If exempt employees are utilized in non-exempt positions while attempting to continue operations in the event of a pandemic, employers risk losing the employee’s exempt status. If an employee loses his or her exempt status, then the employer will be required to pay that employee overtime for all hours worked over 40 hours in a work week. Accordingly, before instituting any cross-training program to plan for a swine flu pandemic, employers should consult with legal counsel to ensure that any employee’s exempt status will be preserved.

When planning and attempting to control the impact of a swine flu pandemic, an employer must also avoid discriminating or retaliating against employees. The process of creating a swine flu pandemic plan and implementing measures to soften a pandemic’s impact is rife with the potential for discrimination or retaliation. In order to avoid discriminatory or retaliatory behavior, employers should treat all similarly situated employees the same and refrain from taking any adverse employment action based upon an employee’s use of leave or any employee complaint. Employers should seek legal counsel before taking these adverse employment actions. Examples of potentially discriminatory or retaliatory actions include, but are not limited to:

Discriminating against older employees by only cross-training younger employees;
Discriminating against older or disabled employees in implementing a social distancing program that only separates workers perceived to have a higher risk of contracting swine flu;
Discriminating by only allowing certain employees to telecommute;
Retaliating against employees by disciplining or terminating them for taking FMLA or other medical leave in connection with the pandemic; or
Retaliating against an employee for filing a complaint with OSHA regarding a swine flu outbreak at his or her employment site.

Conclusion

Employers should be aware of the potential for a swine flu pandemic and must be prepared to meet the challenges that it will create for their workplace. However, when taking precautions and planning for a swine flu outbreak, employers must carefully plan in a way that limits any potential future liability.

If you would like to discuss how the swine flu virus may impact your business, please contact:

Victor T. Geraci
216.430.2026
vgeraci@mcdonaldhopkins.com

Douglas B. Schnee
216.348.5720
dschnee@mcdonaldhopkins.com

Todd L. Sarver
614.458.0042
tsarver@mcdonaldhopkins.com

George J. Asimou
216.430.2015
gasimou@mcdonaldhopkins.com

E. Jason Blankenship
248.220.1334
jblankenship@mcdonaldhopkins.com

Elizabeth Davies
561.472.2978
edavies@mcdonaldhopkins.com

Nicole J. Gray
216.348.5418
ngray@mcdonaldhopkins.com

Jenny McGovern
312.642.6151
jmcgovern@mcdonaldhopkins.com

¹The OSHA standards regarding exposure to any risk require a showing by the agency that a work-related exposure created the harm. This would be virtually impossible in the event of a wide-ranging pandemic. That is, the potential sources of swine flu virus will be so numerous that connecting a particular infection to a particular location will be nearly impossible.

²The OSHA requirements regarding the protecting the health of uninfected employees will apparently be curbed by the inability to even ask about an employee’s health status. We can anticipate employers using the EEOC’s guidelines as a defense to alleged OSHA violations.

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