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If you are an HR professional or business owner, hopefully you have by now dusted off your organization’s workforce recovery plan, and reviewed your HR policies for H1N1. How your organization prepares and shares information with your workforce has never been more important.
It is well beyond the reach of this writing to detail the components that a workforce or business continuity plan should have. Keep in mind, however, that it might not be necessary to “reinvent the wheel” when it comes to your HR policies for H1N1, protocols and practices when confronting this pandemic. If you are like most other organizations, you probably already have the necessary tools and practices in place that can be used immediately or simply adapted to meet your specific HR issues for H1N1.
As a reference, however, the Center for Disease Control (CDC) recently launched on its web site guidance for businesses and employers on how to plan for and respond to the 2009-2010 influenza season (http://pandemicflu.gov/professional/business/guidance.html). The CDC offers the business community a wealth of information to include:
- Components of a pandemic plan
- Response strategies
- Response recommendations
- Preventative measures
- Remedial steps in the event that conditions worsen
The purpose of this discussion, however, is to offer some guidance and best practices when preparing for the H1N1 pandemic covering the following issues:
- FMLA and leaves of absence;
- ADA limitations;
- FLSA obligations;
- HIPAA and privacy rights; and,
Family Medical Leave Act
The Family Medical Leave Act protects eligible employees who are incapacitated because of a ‘serious health condition,’ or for those needing to care for a covered family member who is incapacitated. Leaves taken by an employee merely to avoid exposure to the flu would not be protected under the FMLA.
The key to whether or not a particular absence under a pandemic situation is protected under the FMLA depends on a number of factors. The most relevant of which is whether HR policies for H1N1 related absence meets the definition of a ‘serious health condition’ under the law. By definition, a ‘serious health condition’ is one that requires inpatient care or involves continuing treatment by a health care provider. Most individuals contracting the flu are not hospitalized nor do they receive continuing treatment by a health care provider. Although this determination must be made on a case by case basis, in most situations, FMLA seemingly does not apply. Clearly, leaves taken by employees merely to avoid exposure to the flu are not protected under the FMLA.
Americans with Disability Act
Likewise, the Americans with Disability Act (ADA) is relevant to pandemic preparations as it (1) regulates employers’ disability-related inquiries and medical examinations for all applicants and employees including those who do not have ADA disabilities, (2) prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. significant risk of substantial harm even with reasonable accommodation) and (3) requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.
The following four scenarios come to mind when considering the H1N1 flu and HR Policy:
1. May an ADA covered employer send employees home if they display influenza-like symptoms during a pandemic? Yes, the CDC states that employees who become ill with influenza-like symptoms at the workplace should be sent home.
2. May an ADA covered employer require employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them vulnerable to influenza complications? No, making disability related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA.
3. May an ADA covered employer require its employees to wear personal protective equipment i.e. face masks, gloves, or gowns, designed to reduce the transmission of pandemic infection? Yes, an employer may require employees to wear personal protective equipment during a pandemic.
4. May an ADA covered employer require its employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work? Yes, such inquires are permitted.
Fair Labor Standards Act and Pay Policies
Clearly, the Fair Labor Standards Act and state wage/hour laws come into play when employees miss work and the question is raised whether they must be paid or not. Remember, non-exempt employees are only required to be paid for actual time worked. Exempt employees however fall into a different set of rules.
In terms of best practices in times of this pandemic, some employers have discussed relaxing their pay policies. If financially feasible, some employers are blending sick, vacation and holiday allowances into one bank of PTO. If allowed under state law, some are even permitting employees to borrow from future accruals provided the employer receives a written authorization from the employee allowing a deduct from final wages should the employee leave the company with an outstanding balance.. Another option is permitting employees to work from home in those positions where feasible.
HIPAA and Privacy Considerations
Also at issue is whether or not it is a HIPAA violation requiring employees to disclose that they have the H1N1 flu, have symptoms, or have suffered exposure. The answer is that HIPAA does not apply to questions that an employer asks employees about their health. In the workplace, HIPAA applies only to individually identifiable health information created or received by, or on behalf of, the employer in its capacity as the administrator of a HIPAA-covered plan, such as self-insured group health, dental or vision plans; a health care reimbursement flexible spending account; or an employee assistance program. Put more succinctly, HIPAA applies only to individually identifiable health information created or received to administer a HIPAA-covered plan.
In summary, what is most important is to communicate openly, honestly and truthfully with your employees. Educate not only your employees but their families as well. You might have the best contingency plan in place, but if your employees are not aware of it, all you really have is a three-ring binder sitting on a shelf.
The Cibull Group
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