What Employers Can Do About the Flu

Flu season is here. While the Centers for Disease Control and Prevention (CDC) currently is not reporting high levels of influenza outbreak or predicting pandemic levels of the virus this year, the flu will nevertheless impact businesses whose employees become ill and/or need to take time off for flu-related reasons. With a handful of restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Among the actions employers are permitted to take are:

• Offering and encouraging vaccines;
   
• Requiring infection control practices, such as hand washing, hand sanitizing, and/or the use of protective equipment;
   
• Posting and distributing guidelines and suggestions for infection control;
   
• Sending sick employees home (employers should consider in advance whether employees will be forced to use accrued paid time off, to take the time unpaid, etc.);
   
• Requiring sick employees or employees who were exposed to the influenza virus to stay home;
   
• Asking employees if they are experiencing specific influenza symptoms (provided the questioning is limited and does not solicit other protected medical information, which may be a violation of the Americans with Disabilities Act (ADA) or state antidiscrimination laws);
   
• Requiring a doctor’s note from sick employees returning from work after influenza; and
   
• Inquiring why an employee is absent.

On the other hand, employers are not permitted to take any of the following actions, all of which could give rise to violations of the ADA or other antidiscrimination laws:

• Requiring vaccines of all employees (which may implicate either religious or disability accommodation issues);
   
• Asking employees about underlying medical conditions that may disclose disability information; and
   
• Conducting medical examinations of employees.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.

This article originally appeared in the Gibbons Employment Law Alert blog: www.employmentlawalert.com.