VAB NEWSLETTER OCTOBER 2009 12Employees With Flu Symptoms: Unfit For Duty?By John G. Kruchkoand Paul M. Lusky*There has been a lot of publicityrelated to the impending influenzaseason and its impact on employers.Of primary concern is the announcedpandemic related to the H1N1 influenzavirus, better known as the swine flu. TheCenters for Disease Control (“CDC”)and the Occupational Safety and HealthAdministration (“OSHA”) have bothpublished comprehensive guidancefor employers to assist businesses inpreparing for the swine flu pandemic.The Equal Employment OpportunityCommission (“EEOC”) has also issueda technical assistance memorandum tohelp employers make certain that theirpandemic flu plans are compliant withthe Americans with Disabilities Act(“ADA”).Of course, reading all this materialcan be time-consuming and may ultimatelyresult in confusion, informationoverload and a headache. Still, somemeasure of preparedness is necessaryif only to reduce the potential infectionthreat for your workplace. OSHA suggeststhat a pandemic could result inabsenteeism as high as 40% of the workforceduring periods of peak influenzaillness. Obviously, such an absenteeismlevel could seriously impact productionand delivery schedules. Thus, it maybe both prudent and a good businesspractice to prepare now for the impactof the swine flu.The OSHA Guidance on PreparingWorkplaces for an Influenza Pandemic(the “Guidance”) is quite lengthy andmuch of it may relate to industries thathave greater potential for exposure to theH1N1 virus than your business. For example,businesses that have employeeswho will have contact with the generalpublic (e.g., retail stores) or persons alreadysuspected of being infected withthe virus (health care facilities) willhave to take more precautions than afirm doing construction work. The CDCwebsite has a “Communications Toolkitfor Businesses and Employers” whichis more user-friendly than the OSHAGuidance and it allows you to download“Action Steps” to protect your businessand employees from the flu. CDC hasalso published a “Preparedness Guidefor Small Business” which is helpful.Employers should not ignore theOSHA Guidance, however, because theGeneral Duty Clause in the OSH Act (29U.S.C. § 654 (a)(1)) requires that employersprovide a workplace which is “freefrom recognized hazards that are . . .likely to cause death or serious physicalharm to employees.” OSHA has said thatit will rely on the General Duty Clauseto protect workers from pandemic fluand will adjust its inspection priorities toensure that employers are following itsguidelines should a workplace pandemicbecome a reality. OSHA’s recommendationsfor employers include:• Develop a pandemic flu plan;• Provide employees with access tothe latest flu information and educatethem as the the symptoms of influenza,including swine flu;• Review sick leave policies to ensurethat they are designed to encourageemployees to stay home, without penalty,when they have influenza-relatedsymptoms;• Allow employees to stay home tocare for sick family members;• Purchase infection control supplies(i.e., touchless garbage cans, alcoholbasedsoap/hand sanitizer, tissues,and cleaning supplies) and allow easyaccess by employees;• Educate and train employees inproper hand hygiene, cough etiquette(continued on next page)* John G. Kruchko is a Partner with the Management Labor & Employment Law Firm of Kruchko & Fries in McLean, Virginia; Paul M. Lusky is aPartner with the Firm. For more information, please contact Mr. Kruchko at (703) 734-0554 or JKruchko@KruchkoandFries.com, or Paul Lusky at(410) 321-7310 or PLusky@KruchkoandFries.com. This article is published for general information purposes, and does not constitute legal advice.
13 VAB NEWSLETTER OCTOBER 2009(continued from previous page)and social distancing techniques (reducingthe frequency, proximity, andduration of contact between people);• Consider the use of respirators orsurgical masks to curtail the spreadof infection;• Frequently clean surfaces and itemsthat are likely to have frequent handcontact.If flu conditions become severe,the CDC recommends that employersconduct active screening of employeeswhen they arrive at work and requirethem to go home if they have flu-likesymptoms (fever, cough, runny or stuffynose, headaches, muscle aches, sorethroat, chills and fatigue). Developing aleave policy that encourages employeesto stay home when they have flu symptoms(especially if it involves paid leave)or actually requiring an employee withsymptoms to leave work has been themost controversial of the recommendations.The most frequently asked questionson this issue are as follows:Do I have to pay employees who don’treport to work because of the flu or if theyare sent home because they have flu symptoms?OSHA wants employers to implementleave policies that encourageemployees to stay home, without beingpenalized, when they have flu symptoms.That does not mean, however,that an employer needs to provide paidsick leave to employees out with flu.Non-exempt employees need only becompensated for time actually worked.Federal and state wage and hour lawsdo not require employers to providepaid sick leave. Exempt salaried employeesmay be entitled to compensation,however, if they work any part ofthe day before leaving work because ofillness. One final thought on this issue- - although paid leave is not required,employees are not likely to self-reportflu symptoms if they think they will besent home without pay.Can I ask an employee to work even ifhe has flu symptoms?Employers who discourage employeesfrom using sick leave are actingcontrary to OSHA recommendationsand could be found to be violating theGeneral Duty Clause because they arenot protecting their employees from seriousillness. Employers should not takeactions that increase the risk of infectionto other employees. Also, depending onthe severity of the illness, an employeewith the swine flu may have a serioushealth condition that qualifies for leaveunder the Family and Medical Leave Act(“FMLA”). An employer covered by theFMLA risks violating the Act if it refusesto let an employee exercise his/her leaverights under the Act. Therefore, it is bestto let the employee with flu symptomsgo home.If an employee with flu symptomsmisses work because of his illnessbut does not see a doctor, can we counthis absence as an occurrence under ourabsenteeism policy?Penalizing an employee for anabsence because of flu symptoms isagain contrary to OSHA’s Guidance.Nevertheless, if an employer has toexcuse the absence of every employeeout with a sore throat and a stuffy nose,the attendance policy will be prettyuseless, not to mention ripe for abusefrom employees who may want to takeadvantage of the relaxed standard. Oneway to solve this dilemma is to notifyemployees that absences because of flu orflu symptoms will not be counted as anoccurrence under the absenteeism policyif the symptoms are verified by a doctor’snote. This procedure will prevent misuseThe Virginia Department of Healthhas kicked off a statewide mediacampaign and vaccination programfor the H1N1 flu virus, vaccinatingseveral members of the designatedpriority groups and unveiling a broadpublic awareness program designedto encourage Virginians to get vaccinatedagainst the potentially lethalstrain of flu.“The first doses of the vaccine arenow available in Virginia,” said Dr.Karen Remley, Virginia’s health commissioner,.“However, while we areconfident that we will have a sufficientamount for every Virginian who wantsa vaccine to get one, we are asking thosein the priority groups to be first in lineto get protected against this highlycontagious flu strain.”Dr. Remley and the Virginia Departmentof Health are strongly encouragingall Virginians to get vaccinatedof the sick leave policy and underscorethe employer’s efforts to maintain a safeworkplace by encouraging employees toself-identify any potential case of the fluby going to the doctor.One of my employees claimed he contractedthe swine flu at work. He says hewill file a workers’ compensation claim. Howshould we respond?Many state workers’ compensationstatutes provide compensation for absencescaused by occupational diseases;i.e., illnesses contracted in the courseof employment. The employer shouldfile a First Report of Injury form for anemployee determined to file a workers’compensation claim for a flu-relatedabsence. The challenge for the employeewill be proving he contracted the flu virusat work rather than from contact frompersons outside employment.There are numerous legal issues thatcan arise from an employer’s responseto the predicted flu pandemic. Becauseof OSHA’s increased attention to thisissue and the value prevention can havefor the efficiency of business operations,employers are advised to be proactiverather than passive in responding to theH1N1 virus. v©2009 Kruchko & FriesStatewide Campaign Promotes Vaccinationagainst the H1N1 flu. She noted thatthe vaccine is extremely safe, with therisks associated with the flu itself faroutweighing any potential risks relatedto the vaccine. She said that broaderavailability of the vaccine is expectedin November.As part of its campaign to urgecitizens to get the vaccination, VDHhas prepared an extensive mediacampaign, which will include publicservice television and radio spots,transit, Internet-based and cinemaadvertising. The campaign carries thetheme “H1N1Get1. It’s up to you tofight the flu.”A special Web site, www.H1N1Get1.com also has been set up to provide upto-dateinformation about the virus andthe places where vaccinations are availablethroughout the Commonwealth.Information also is available by calling1.877.ASK.VDH3. v
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