DOL's Wage and Hour Division Issues Guidance on How to Comply with the FMLA and FLSA in Light of Pandemic Flu

Posted on November 13, 2009 by Jay Sumner

The Department of Labor’s (DOL) Wage and Hour Division (WHD) has posted to its website information sheets discussing the interplay between pandemic flu preparation/response and compliance with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Both guidance documents are in question and answer form, and address common wage, hour, and leave issues employers face when employees or their family members become sick with the H1N1 influenza virus or other pandemic flu.

Both fact sheets: Pandemic Flu and the Fair Labor Standards Act: Questions and Answers (pdf) and Pandemic Flu and the Family and Medical Leave Act: Questions and Answers (pdf) can be found here.

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Emergency Sick Leave Bill to be Introduced in the Senate

Posted on November 11, 2009 by Jay Sumner

During a November 10 Senate subcommittee hearing on the H1N1 influenza virus (“swine flu”) and paid sick leave, Senator Chris Dodd (D-Conn.) announced that he plans to introduce a bill that would entitle most employees to take up to 7 days of paid sick leave to deal with the H1N1 or seasonal flu. According to a press release, under the terms of this bill workers would be entitled to the paid leave for their own flu-like symptoms, medical diagnosis or preventive care, to care for a sick child, or to care for a child whose school or child care facility has been closed due to the spread of flu. The decision to take this leave would be left to the employee’s discretion, although the Department of Labor could issue regulations requiring medical certification. If signed into law, the provisions of this bill would take effect 15 days after enactment, and sunset after 2 years.

Similar legislation was introduced in the House on November 3.  The terms of the House version of the bill appear to be more stringent, however. The House’s Emergency Influenza Containment Act (H.R. 3991) would provide up to 5 days of leave to deal with a contagious illness only if the employer directs or advises the employee to stay home. Employees would not be entitled to paid leave if they decide for themselves to stay home.

The Senate’s more generous emergency sick leave legislation borrows from The Healthy Families Act (H.R. 2460, S. 1152), a paid sick leave bill introduced earlier this year in both chambers of Congress. The Healthy Families Act would allow employees to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as doctor’s appointments.

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OSHA Launches H1N1 Website for Employers

Posted on November 11, 2009 by Jay Sumner

The Occupational Safety and Health Administration (OSHA) has created a website that contains guidance materials for employees and employers on how to reduce exposure to the H1N1 influenza virus (“swine flu”) in the workplace. Separate fact sheets recommending additional precautions are available for employers and workers in the health care industry.

The fact sheet for non-healthcare employers highlights information contained in OSHA’s Fact Sheet What Employers can do to Protect Workers from Pandemic Influenza and HHS/CDC’s Guidance for Business and Employers to Plan and Respond to the 2009-2010 Influenza Season.  These materials encourage employers to, among other things, develop policies for workers and clients who become ill in the workplace, educate employees on conditions that place them at higher risk for developing flu complications, and improve workplace hygiene. The fact sheets for healthcare employers encourage additional controls to limit flu exposure, including the installation of physical barriers to isolate flu patients, reducing patient transport, and providing respiratory protection and other personal protective equipment to healthcare providers.

In a press release, OSHA’s acting assistant secretary stated: “Protecting our nation's workers is OSHA's top priority,” adding, “These fact sheets are tools we have developed to help ensure America's workers stay healthy and our businesses remain viable. OSHA's new fact sheets will help all employers identify appropriate actions to protect their workers.”

The website, which lists links to other resources on H1N1, will provide updated materials as new information on the virus becomes available.

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EEOC Issues Updated Technical Assistance Document Related to ADA Compliance and Pandemic Preparedness

Posted on October 14, 2009 by Jay Sumner

U.S. Equal Employment Opportunity Commission emblemThe Equal Employment Opportunity Commission (EEOC) has issued an updated Technical Assistance Document (TAD) – Pandemic Preparedness in the Workplace and the Americans with Disabilities Act – to address how employers may prepare their workplaces for pandemic influenza outbreaks and still remain in compliance with the Americans with Disabilities Act (ADA). The TAD was amended in response to employers’ frequently asked questions about workplace preparation for, and reaction to, outbreaks of the H1N1 virus, which has become more widespread in recent months.

The TAD addresses such questions as:

  • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?
  • When may an ADA-covered employer take the body temperature of employees during a pandemic?
  • Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
  • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

The document also provides, in a question and answer format, information to help employers develop a plan to manage their workplace in an ADA-compliant manner both before and during a potential outbreak. In addition, the TAD explains when inquires about an employee’s health are permissible, and when they could be considered disability-related and thus potentially violate the ADA.
 
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CDC Releases Employer Guidance for Upcoming Flu Season

Posted on August 20, 2009 by Jay Sumner

In anticipation of a resurgence of the H1N1 (“Swine”) flu, the U.S. Department of Health and Human Services’ (HHS) Centers for Disease Control and Prevention (CDC) has issued recommendations and strategies for employers to follow in order to minimize any potential outbreak. The Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season outlines steps employers should take in advance of the flu season, strategies to employ in the event an outbreak becomes severe, and guidelines to use in determining when an employee who is absent from work with the flu should return to the job.

Recommendations include reviewing or establishing a flexible influenza pandemic plan; having an understanding of the organization’s normal seasonal absenteeism rate; instituting more flexible sick-leave and telecommuting policies, especially in the event of school or childcare closings; encouraging seasonal flu vaccinations as well as the H1N1 vaccination when it becomes available; permitting higher-risk employees to work from home; and actively screening employees who report to work if the severity of the outbreak increases. The guidance also suggests that organizations assess their essential business functions to determine the minimum level of staffing needed to remain operational, and plan accordingly.

For more information on preparing the workplace for a flu outbreak, see Littler’s ASAP:
Swine Flu: Preparing the Workplace for a Pandemic  by: Steve McCown and
Donald W. Benson.

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