Employment Law Alert – Employers Should Take Steps Now to Prepare for Flu Season

November 02, 2009

The H1N1 “swine flu” was a prominent topic in the media last year, and the U.S. Department of Health Services’ (“DHS”) Centers for Disease Control (“CDC”) anticipates that the virus will be more widely transmitted and affect more communities during the 2009-2010 flu season than in previous years.  Like the SARS epidemic before it, the H1N1 flu virus will pose interesting challenges for employers.

How the Swine Flu May Affect Your Business


.  A pandemic flu outbreak could affect as much as 40% of your workforce, resulting in severe absenteeism.  Further, employees may miss work in order to care for sick family members, or to tend to children in the event that day care centers or schools close.

Commercial Disruption

.  Businesses may experience reduced sales and revenue and an inability to ship or receive supplies, parts or inventory in a timely manner as customers and suppliers also may be affected by a flu pandemic.

Employee Exposure

.  Equally problematic is the tendency for employees to come to work when they are sick and attempt to get through the day despite their illness.  They may be motivated by fear of losing their jobs, or believe that is what is expected of them.  Sick employees are not only less productive than normal, but they pose a risk of infection to other employees because the flu, and particularly the H1N1 virus, is highly contagious and easily transmitted.

Potential Solutions for Employers
Maintaining stability through the flu season will depend on two main qualities in your workforce:  flexibility and education.

Consider options to maximize work force availability, such as staggering shifts, calling on part-time workers to work additional hours, or utilizing temporary workers.  If non-exempt employees are asked to work overtime, then time and a half and double time must be paid as required by law.

Implement cross-training now to ensure that more than one individual in the workplace can perform the same function and job duties.  Employers may wish to train three or more employees to be able to sustain business-necessary functions and operations, and communicate that available employees may be needed to perform these functions if needed during an outbreak.

Swine Flu and the Law
While employers are required to provide a workplace free of known hazards to its employees, they also need to be mindful of employment laws when asking questions or directing employees to take certain actions.

Employers of 50 or more employees are required to provide qualified employees with 12 weeks of unpaid leave per year for their own serious health condition, or the serious health condition of a close relative, under the Family Medical Leave Act (“FMLA”).  Swine flu will likely qualify as a “serious health condition,” and employers should be open to permitting employees to take unpaid leave if they are suffering from swine flu or must stay home to care for an ill child, spouse or parent with swine flu.  While an employer can certainly require medical certification for an individual who seeks to take unpaid FMLA leave, employers should consult with legal counsel prior to attempting to require an employee to be tested for swine flu.  An employee who reports that he or she has the swine flu, however, may be asked to provide a doctor’s certification that he/she is not contagious before he/she may report back to work.  In that instance, as discussed below, employers should take care not to discriminate against the employee or permit any of his/her co-workers to discriminate against the employee because he/she has had the swine flu.

Employers have the obligation to provide notice to employees of their ability to claim State Disability benefits or Paid Family Leave (see  Employees may want to take leave rather than coming to work because they may receive paid benefits if their absence is greater than five (5) days.

Individuals infected with swine flu also may be protected under disability discrimination laws.  The Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) forbid discrimination against employees who are disabled or regarded as disabled if they are otherwise qualified to perform the essential functions of their jobs with or without a reasonable accommodation.  These laws do not require an employer to permit a contagious employee to continue working (unless the employee is otherwise fit for duty and a reasonable accommodation, such as telecommuting, exists), but it may forbid employers from firing employees because of their illness, or from discriminating against employees who have recovered. 

Remember that employees’ medical information is highly confidential.  Employers should comply with the Health Information Portability Accountability Act (“HIPAA”) or California Medical Information Act (“CMIA”) by segregating all confidential medical information from the personnel file.  Further, employers should be careful about how medical information is documented, so as not to violate the Genetic Information Nondiscrimination Act (GINA).

Flu season presents many challenging questions for employers.  What should the employer do if an employee mentions that his or her child has been sent home from college due to an H1N1 outbreak in the dormitory?  What about an employee who learns, after making a cross-country trip to New York for business, that an individual on the plane contracted H1N1?  Can an employer require an employee to stay at home for mere exposure to the H1N1 virus?  Can the employer force the employee to take an unpaid leave of absence, or to use PTO or sick time?  Who has financial responsibility for a salesperson who cannot meet quota because he or she is required to stay out of the workplace due to contagion? The answers to these questions will be fact-driven and will vary from case to case.  Employers should contact legal counsel to work through these issues.

What can Employers Do to Avoid the Spread of Flu and Employment-Related Claims

Sick Leave

.  Develop a policy which does not penalize employees for taking time off when they or immediate family members are afflicted with influenza.  Employers who are governed by the FMLA must provide up to 12 weeks of unpaid leave for qualified employees.  Employees who are reluctant to use unpaid time may request to use PTO or sick time.

Encourage Reporting of Symptoms

.  Train your employees to immediately report to their supervisor if they are experiencing flu-like symptoms, and supervisors to promptly relay such reports to Human Resources.  Remind supervisors that any medical information received from employees is strictly confidential.  Medical information should never be kept in an employee’s personnel file.

Encourage Sick Employees to Stay at Home

.  Encourage employees who are experiencing flu-like symptoms such as a sore throat and fever, to see a medical professional.  If employees know they are contagious or have the flu, they should not come to work.  To a certain extent, however, employers will have to trust their employees not to come to the workplace if potentially contagious.


.  Organized workplaces should communicate with unions regarding leave, pay, transportation, travel, childcare, absence and other human resources issues.  Every employer should identify a central team of people to serve as an information source for employees and customers.

Provide Personal Protective Equipment

.  If an employee reports to work with mild flu symptoms but refuses to go home, and believes that he/she can perform the essential functions of his or her job, one potential accommodation is to require the employee to wear a mask and/or gloves.  The employer should obtain a stockpile of surgical masks and non-latex gloves (many individuals are allergic to latex), and educate employees as to where they are located and when they should be worn.

Consider Increased Sanitation Practices in the Workplace

.  Speak to your janitorial professionals about increased regularity of cleaning and encourage employees to sanitize commonly-used environmental surfaces regularly.  Provide ample supplies of soap, tissue, hand sanitizer, no-touch trash cans, and cleaning supplies.

Telecommunication/Decreased Travel to Problem Areas

.  Consider increasing approved telecommunication where appropriate.  Nonessential travel to areas which the CDC identifies as having high illness transmission rates, such as Mexico, should be discontinued.

Encourage Flu Shots

.  Employees may be encouraged (but not required) to obtain a seasonal influenza vaccine.

Educate Employees about Hygiene and Safety Precautions

.  Employees should be advised about proper hand-washing techniques, when to remove and replace gloves, and when and how to sanitize commonly-used environmental surfaces (i.e., door knobs, desks, telephones, machinery).  Discourage employees from using each other’s telephones, computers, desks, offices, or other work tools or equipment.

Educate Employees about Symptoms

.  Send e-mail correspondence or post bulletins in common areas regarding symptoms of influenza, ways the employees can stay healthy at work, and how to prepare for flu season.  Educational posters and ideas for e-mail or bulletin communications are available for download at

Read Up on the Facts about Swine Flu

.  The United States Department of Labor’s Occupational Safety & Health Administration (“OSHA”) has recently issued updated guidelines on preparing workplaces for an influenza pandemic.  See

Attorneys in the Berliner Cohen Employment group will be pleased to provide further information regarding the matters discussed in this Alert:

Roberta S. Hayashi

Christine Long

Kara L. Arguello



©2009 Berliner Cohen.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.

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