|
|
|
|
|
Employment Law
Alert November 4, 2009
|
|
|
Labor and
Employment Practice Group Leader
Health Care
Practice Group Leader
|
|
Practice Group
James E. Baiers
Connie M. Cessante
Anne-Marie Vercruysse Welch
|
|
|
|
|
Keep Your
Business Healthy During H1N1 Season
by: Thomas P.
Brady and Gregory W. Moore
As the height
of Michigan flu season draws near, parents, caregivers and others throughout
Michigan are taking precautions to protect loved ones from the H1N1
influenza virus. Employers throughout the state should be doing the
same to protect their businesses and employees. Now is the time for
Michigan business owners to create a "pandemic preparedness
plan" to ensure the health of their enterprises should H1N1
strike home.
Protect Your
Workforce
Every "pandemic preparedness plan" should first and
foremost examine ways to reduce employee interaction with individuals
who exhibit influenza-like illness during the height of a
pandemic. Eliminating potential sources of exposure for
employees is the single most important aspect of any plan. For
example, a dental office may want to postpone visits by patients with
suspected or confirmed influenza.
Elimination of
all interaction with the public is often not possible. Where
interaction cannot be avoided, employers should examine methods of
isolating employees from sources of potential exposure. Partitioning
employees from the public can be useful. By way of example, a bank
branch may consider limiting the number of in-bank transactions and
instead redirect customer visits to available drive up windows during
periods of high transmission.
Plan Ahead
Through Policy
In preparing a "pandemic preparedness plan," employers
should decide whether to revise sick leave, paid time off or other
policies for employees with H1N1. When employees come to work despite
illness to save paid leave time, they risk infecting healthy
employees and disrupting the employer's operation. Explicit policies
can help prevent this.
To prevent
wage claims, employers should draft a H1N1 policy specifically
stating employees must take unpaid H1N1 leave unless they wish to
substitute paid leave. H1N1 leave policies should require the
employee to take seven days off or remain at home until 24 hours
after the fever breaks. Employers whose employees are represented by
a union will have to work within the collective bargaining agreement
or negotiate a policy.
Spread the
Word, not the Virus
To prevent the virus from spreading to colleagues, employers should
tell employees not to come to work if they believe they have H1N1 flu
and to remain home until 24 hours after their fever dissipates.
Employers also should review H1N1 symptoms and proper flu etiquette
with all employees and inform employees of the company's call-in
procedures.
Before Illness
Hits - Know Your Options
Employers can enact policies to help prevent H1N1 flu from affecting
a workplace. For example, policies may require employees to regularly
wash their hands, observe proper coughing and sneezing etiquette and
properly dispose of used tissues.
In Michigan,
an employer also may require employees to be vaccinated against H1N1,
unless a disability prevents the employee from doing so or if
vaccinations conflict with the employee's religious beliefs.
Employers doing so should be cautious, however, as they may expose
themselves to liability under state worker's compensation statutes if
the employee becomes disabled due to the vaccination.
When Illness
Hits - Know Your Options
Should an employee contract H1N1 flu, or any other illness, employers
should be familiar with legal options and potential pitfalls. For
example, an employer may ask why the employee is absent, but should
not ask questions about the employee's illness. Such inquiries could
violate the Americans with Disabilities Act (ADA). Any information
about an employee's illness must be treated as confidential.
Under Michigan
law, employers can send an employee home if they suspect a H1N1
infection. If the employee is represented by a union, the employer
may draw a grievance. However, it is recommended that employers not
request an employee see a doctor. To ensure ADA compliance, the
decision to send an employee for a medical exam of any kind, should
not be made without the advice of legal counsel. Even taking an
employee's temperature could be construed as a "medical
exam" according to the Equal Employment Opportunity Commission.
When an
employee is prepared to return to work, the employer may require a
work certificate from the employee's doctor, though Centers for
Disease Control and Prevention prefers employers not ask for these
certificates to prevent the medical community from being overwhelmed
during the H1N1 pandemic. An employer must uniformly apply its
practice of requiring return to work certifications.
Don't Discount
FMLA
Employees also must understand the implications of the Family and
Medical Leave Act (FMLA) in addressing H1N1 illnesses in the
workplace. FMLA permits a qualified employee to take 12 weeks of
unpaid leave to care for a spouse, child or parent with a serious
health condition or because of a serious health condition that makes
the employee unable to perform job functions. H1N1 flu could be
considered a serious health condition if there are complications.
Employers
should be cautious in disciplining or discharging employees who may
qualify for FMLA leave and should seek legal counsel before
determining a course of action. Employers are not required to allow a
parent FMLA leave when the employee's children's school is closed due
to illness but where the child is not suffering from the flu.
FMLA requires
employees to notify their employer of a flu-related absence "as
soon as practicable" to qualify for leave. If workplace notice
requirements are in place prior to the illness, employees must comply
with those policies to meet this standard. However, before
disciplining an employee for failure to notify the employer of the
absence, the employer should investigate the reason why the employee
failed to give notice. If the employee was incapable of giving
notice, the employer should waive the notice requirement.
A
"pandemic preparedness plan" can be a lifeline for Michigan
employers during what may be a harsh H1N1 flu season. Planning ahead
and understanding the available options can be the difference between
an infection that comes and goes in a day and one that keeps a
business bedridden for the long term.
For additional
information regarding keeping your business healthy or H1N1,
contact either Tom Brady at 313.965.8291 or Greg Moore at
248.988.5842.
|
|
|
|
|
To find out
more about Clark Hill and our Labor and Employment Practice Group,
visit clarkhill.com
or call 800.949.3124
|
|
|
