Swine Flu Updated Guidance for Employers

By Sheri McWhorter

We are now several months past the initial panic surrounding the swine flu virus.  Some say the media hype and public hysteria has created a “cry wolf” effect, creating a real temptation for employers to fail to plan for the next wave of the pandemic.

On August 5, 2009, the CDC reduced its recommendation for the amount of time people with swine flu should remain at home and away from others.  The new guidance applies to all businesses except health care settings, and suggests self-isolation until at least 24 hours after the individual is free of fever.

Data collected by the CDC during spring 2009 found most people with swine flu ran a fever for 2 to 4 days, generally requiring an exclusion period of 3 to 5 days.  The CDC recommends the 3 to 5 day exclusion period regardless of whether antiviral medications are used.  Thus, in general, employers should expect a swine flu infected employee will be absent 3 to 5 days, even where the employee is prescribed antiviral medication.

Widespread employee absences of 3 to 5 days could severely impact your business operations and give rise to legal, as well as practical concerns.  For example, if one of your employees stays home with swine flu, or stays home to care for a sick child who has swine flu, that employee may be legally entitled to job protected leave under the FMLA.

The FMLA applies to any business employing 50 or more employees within a 75 mile radius, and provides up to 12 weeks of job protected leave to employees meeting eligibility requirements.  An employee with swine flu may qualify for FMLA leave where the employee is absent from work for more than 3 consecutive days, and receives treatment including prescription medication.

Putting aside the job protections of the FMLA, have you reviewed your workplace policies on employee absences, paid time off, and unpaid leaves of absence?  You may wish to consider offering excused unpaid time off to employees absent due to swine flu, but who have exhausted their paid sick leave or other paid time off.

Where an employee has been out with swine flu and wishes to return to work, can you require a doctor’s note verifying the employee is no longer ill/contagious and may safely return to work?  Be careful, since such a practice may violate the ADA’s regulations on medical exams.  Caught between a rock and a hard place, that is, between allowing a possibly contagious employee to return to work versus the risk of violating the ADA, some employers choose to revise their sick leave policies to encourage employees to stay home for the CDC’s recommended self-isolation period.

You are not obligated to allow an employee who reports to work sick to remain in the workplace.  Exempt employees sent home for less than a full week must generally be paid their full salary for that week.  Non-exempt employees sent home need not be paid, so long as they perform no work at all during the time they are away.

Where an exempt employee is out with swine flu (or caring for a child with swine flu, if allowed by company policy) and has accrued sick leave/PTO remaining, the employee may be eligible for pay under the your sick leave/PTO policy.  However, if the exempt employee has exhausted his sick leave/PTO, the employee must be paid for the full day where the employee performs any work during that day.  If your company does not provide sick leave/PTO, you generally must pay an exempt employee his full pay for any week in which the employee performs any work during that week.  Be careful determining whether the exempt employee has performed “any work” during a particular day or week, and in deciding whether to make a deduction from the exempt employee’s pay, since technically, the “work” could consist of sporadic work such as checking emails from home once or twice during a weekday.

Non-exempt employees must be paid for any work they perform, even if the work is performed away from the normal workplace, and outside normal business hours.  If the non-exempt employee performs no work while absent, the employee is not entitled to be paid.  Once again, however, be careful, since non-exempt employees who check emails or voice mails from home are performing work, and must be paid for that time.

Employers should plan for how they will continue to operate the business should significant absenteeism affect their workplace.  Consider flexible work hours and work sites, staggered work schedules, telecommuting, and other ways by which you can get the work done, yet still place social distance between employees, and thus slow the spread of swine flu.  Regardless of the size of your business, you need a plan.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegalSolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For more information, contact Ms. McWhorter at 813.321.7383 or 727.388.5383, or visit WorkplaceLegalSolutions on the web at www.workplacelegalsolutions.com.