Coronavirus and influenza: Key issues for employers

While the coronavirus warrants and continues to receive careful attention, experts warn that the flu may be far more deadly in 2020. February marks the peak of flu season. In fact, according to the Centers for Disease Control and Prevention (CDC), influenza this year is at a record high with an estimate of at least 19 million Americans infected and approximately 180,000 hospitalizations. Whether it’s the flu or coronavirus, employers managing increased workplace illness should be aware of potential employment law issues and develop strategies for maintaining a healthy workplace.

What illness-related questions can I ask my employees?
The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries (e.g., asking questions likely to elicit information about a disability) or requiring medical examinations of employees, except under limited circumstances. Typically, the flu is not a covered disability under the ADA, because it usually does not last long enough to substantially limit a major life activity. However, someone with the flu may claim an employer “regarded” them as having a disability based upon the employer’s inquiries, which is also prohibited under the ADA.

With regards to the flu and other contagious illnesses, the following applies:

• Employers may ask employees whether they are experiencing flu-like symptoms, such as fever, chills or a sore throat.
• Employers may ask employees who recently traveled to locations with high rates of the flu illness or other highly contagious illnesses whether they are experiencing symptoms, even if the travel was personal.
• Employers may not ask employees whether they have medical conditions that would make them more vulnerable to the flu or other illnesses.
• Before denying an employee’s request for a leave of absence or other accommodation due to any illness, including the flu, employers should consider whether there are other underlying conditions that could be ADA qualifying or whether the illness itself is “sufficiently severe” enough to be considered a disability under the ADA.

Can I send sick employees home? What leave coverage are they entitled to?
The CDC advises that employees who are experiencing the flu or other highly contagious illnesses should stay home to minimize the spread of illness. While it may be legally permissible to send a sick employee home, an employer should do so with caution and have an established policy that it follows consistently. Employers should also keep in mind that some severe cases of flu, particularly those requiring hospitalization, may be covered under the Family Medical Leave Act (FMLA). Additionally, for employers in states with paid state or local sick leave laws, many of those laws allow workers to use paid leave to recover from the flu or other extended illness.

Can I require employees to get vaccinated?
Generally, employers are free to implement mandatory flu vaccination programs for their employees, and a few states have passed laws requiring flu vaccines for health care workers. For health care employers, the goal is to stop the spread of illness not only to other workers but to patients, many of whom may have compromised immune systems. For non-health care employers, the more common practice is to encourage, rather than to require, vaccinations. For employers that do require vaccinations, it is important to keep in mind that an employer must provide reasonable accommodation for employees with a disability or medical condition for which vaccination is contraindicated or who have a sincerely held religious belief or practice that prohibits the employee from getting vaccinated.

Other considerations
Employers can take basic precautions to maintain a healthy workforce during flu season and throughout the year:

• Encourage employees to get vaccinated and make vaccination clinics available onsite when possible.
• Ask sick employees to stay home and provide a leave policy that supports employees staying at home when ill.
• Promote hand hygiene and cough etiquette.
• Keep the workplace clean, paying special attention to commonly touched surfaces and equipment.
• Educate employees about the flu and risks for flu complications.
• Reconsider business travel to areas with high illness rates.

Finally, employers should review their leave and accommodation policies and practices to ensure compliance with all applicable employment laws.