Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by D. Gregory Valenza | The Daily Journal | May 8, 2009

Employers are struggling to make ends meet under difficult economic conditions. They have reduced their workforces so that the remaining employees must do more with less help. The last thing we need is a flu outbreak.

Is the H1N1 virus another sensational media overreaction like SARS, deadly sharks and killer bees? Or is it a real threat that has the potential to idle large portions of the workforce? There is no way to be sure. So, employers are taking steps to avoid a flu outbreak at work now.

Given people spend much of their waking lives at work, it makes sense to prevent the flu from spreading at the workplace. In addition, most employers have a federal and/or state law duty to provide a safe workplace for employees, which means a duty to address hazards that are or should be known.

The threat of a flu pandemic is temporary. But potential liability for employment law violations will endure. Employers therefore should be aware of their rights and obligations, and should ensure policies comply with existing laws.

Employers can find a great deal of helpful information on the Internet. The federal government has launched an inter-agency Web site addressing how employers may help prevent or minimize flu exposure. The URL is The site compiles information and recommendations from the Centers for Disease Control and Prevention, the Department of Health and Human Services, the Department of Labor, the Occupational Health and Safety Administration, the Equal Employment Opportunity Commission and other agencies.

The site includes is a link to OSHA’s pamphlet, “Guidance on Preparing Workplaces for an Influenza Pandemic” (available at This document contains information on how employers in different industries can prepare. There is special advice for high-risk work environments, such as health care. But OSHA advises that every employer can implement “social distancing” and basic hygiene measures. The former includes minimizing in-person meetings and contact, increasing e-mail and telephone communications, facilitating telecommuting where feasible, encouraging sick employees to stay home and more. The latter includes common sense advice on washing hands, maintaining clean work areas, and the like.

Many employers provide some form of paid sick leave or paid time off. But except in San Francisco and other localities mandating certain paid sick time, there is generally no obligation to do so.

When sick pay is exhausted, time off may be unpaid. Employers with separate sick and vacation policies may wish to permit employees to use paid vacation leave as well. There is no legal requirement to do so. But employers should apply their policies consistently.

Employees classified as “non-exempt” (from overtime and other wage laws) naturally need not be paid wages for any time they miss due to illness. But exempt employees (such as executives) typically must be paid a full week’s salary for any week in which they perform any work. The employer may dock an exempt employee’s pay for a full day of absence due to illness.

But exempt employees who perform any work while sick, and those required to keep in touch via email and telephone, must be paid their full salary for the day.

Employers should review their attendance policies regarding how they will treat excessive absenteeism during a flu outbreak. Merely calling in sick, even when paid sick leave is available, ordinarily does not guarantee job protection (except in San Francisco and other local jurisdictions requiring sick leave). Employers who wish to encourage sick people to remain home may want to ensure employees who do so are not fired for poor attendance.

Time off for illness caused by an “ordinary,” seasonal flu does not usually qualify as a “serious health condition,” under the Family and Medical Leave Act or the California Family Rights Act. But a serious case of the flu, incapacitating the employee or a covered relation, and requiring medical treatment, may be covered. If so, absences for the employee’s own illness, or for a covered relative’s sickness, could entitle the employee to job protection for up to 12 weeks of leave per year. Employers should review whether they are subject to these laws, which employees are eligible, and whether the illness in question qualifies as a “serious health condition” under the law.

California employers should be familiar with the “kin care” law, Labor Code Section 233. That law requires employers of over 25 employees to permit their workers to use up to one-half the year’s sick leave entitlement to care for a parent, spouse, child or domestic partner. The statute prohibits disciplinary action against an employee who takes sick leave under this provision. The law does not protect employees who take sick leave for their own illnesses.

Finally, the flu ordinarily should not constitute a “disability” under the federal or state disability anti-discrimination laws. But the new Americans With Disabilities Amendments Act drastically expands the definition of “disability,” and the California version already is broad. If a serious flu reaction counts as a “disability,” employers may be required to grant job-protected leave as a form of “reasonable accommodation.” The courts eventually will have their say on this.

If an employee is exposed to the flu at home, but is not sick, can an employer send the employee home to avoid the possibility of contamination? There is no law prohibiting such a practice, but the morale implications should be considered. Employers also should be consistent. For example, employers should not require only employees with children to go home.

There are a couple of wage and hour issues that may arise. Sending an exempt employee home involuntarily does not relieve the employer of the obligation to pay the exempt worker’s salary. Substituting vacation or paid time off is not permitted in California if the exempt employee’s absence is not voluntary. Non-exempt workers may be entitled to “reporting pay” of up to one-half of the regularly scheduled day’s work or a maximum of four hours’ pay.

Employers may wish to permit telecommuting or working remotely to help employees avoid exposure to the flu. Employers without a telecommuting policy or familiarity with the many employment law issues that arise should proceed cautiously. Telecommuting arrangements implicate matters such as employee productivity, timekeeping and meals and rest periods, workers’ compensation liability, how to implement normal workplace policies and expense reimbursement. Additionally, recognizing that a job is amenable to remote work could be used later as a basis for a “reasonable accommodation” request. Employers also must ensure confidential information is stored properly and not compromised.

If the Family and Medical Leave Act applies, employers may, as part of a policy, require a certification from the employee’s health care provider stating the employee is fit to return to work. Similarly, employer sick leave policies often require employees to be “released” to work by their health care provider after a number of days’ absence. There is nothing wrong with continuing this practice. But employers should not be selective regarding which employees are required to submit medical documentation.

The Equal Employment Opportunity Commission, the agency responsible for enforcing the Americans With Disabilities Act, also permits employers to require employees to submit return-to-work certifications. Employers should have a reasonable belief the employee is impaired from working or could be a direct threat to his or her co-workers’ health. The medical inquiry or examination also should be tailored to the specific medical condition involved, such as the flu.