This year's flu season is severe. All but a handful of states are experiencing widespread flu outbreaks, which has many employers wondering what they are permitted to do under the law when their employees get sick.
One issue that is becoming increasingly relevant is paid sick leave. Several jurisdictions, including Arizona, California, Connecticut, Massachusetts, Minneapolis, Oregon, Rhode Island, Vermont, Washington, Washington, D.C., Philadelphia Chicago and Cook County, Illinois, among others, have paid sick leave laws on the books. There is no federal paid sick leave law. The upshot of these laws is that they may take away some incentive for sick workers to report to work, making the illness less likely to spread to the rest of the workforce. The downside is they place limitations on employers. For example, employers generally cannot make taking a paid sick leave day contingent upon the employee finding someone to cover their shift. Depending on the law, employees don’t always need to give notice of their absence before their shift begins, which could wreak havoc on scheduling. And some laws limit an employer’s ability to ask for a doctor’s note.
Employers do however have some latitude when it comes to requiring employees to stay home from work or sending them home if they show signs of illness. Employers just need to be careful not to cross any lines set by the federal Americans with Disabilities Act (ADA) or a state fair employment statute. This means steering clear of conducting medical examinations and/or making a disability-related inquiry.
According to the U.S. Equal Employment Opportunity Commission, employers should generally avoid the following:
- Taking an employee’s temperature. This is considered a medical examination by an employer, which is generally prohibited except in limited circumstances.
- Asking employees to disclose whether they have a medical condition that could make them especially vulnerable to complications from influenza or other common illnesses. Doing so would likely violate the ADA or state laws, even if the employer is asking with the best of intentions.
- Requiring employees to get a flu shot. Employees could have a disability that prevents them from taking the influenza vaccine, which could compel them to disclose an underlying medical condition to their employer to avoid taking the shot. Additionally, some employees may observe religious practices that would prevent them from taking the flu vaccines. Thus, requiring an employee to take a vaccine could lead to a violation of Title VII of the federal Civil Rights Act of 1964 in addition to the ADA.
Beyond these limitations, employers can take these proactive steps to keep the workplace healthy:
- In determining who should go home or not report to work, employers may ask workers if they are experiencing flu-like symptoms. According to the EEOC, this would not rise to the level of a medical exam or a disability-related inquiry.
- Employers can order an employee to go home if they are showing signs of the flu. The EEOC says that advising such workers to go home is not a disability-related action if the illness is like the seasonal influenza or the 2009 spring/summer H1N1 virus.
- Employers may encourage workers to telecommute as an infection-control strategy. But be advised that once the door to telecommuting for the flu or a cold is opened, the company could be establishing a precedent for telecommuting as a reasonable accommodation in other circumstances, such as for an employee recovering from major surgery who cannot come to the workplace.
- Employers may encourage — but not require — employees to get flu shots. For example, a company can invite a health care professional to the workplace to administer flu shots at a discounted rate, but the employer cannot require workers to get the shot.
- Employers may require employees to adopt certain infection-control strategies, such as regular hand-washing, coughing and sneezing etiquette, proper tissue usage and disposal, and even wearing a mask.
As with most laws, there are always exceptions to the rule depending on the circumstances including the type of workplace, such as for employees in a hospital or a doctor’s office. The ADA, Title VII, state fair employment laws and paid sick leave statutes are incredibly nuanced, and it's also important to balance the mandates of OSHA, which require employers to maintain a safe working environment. So, before taking any significant actions, employers should consult with an employment attorney or HR professional for guidance.