As health officials around the globe confront the outbreak of the H1N1 virus (previously referred to as swine flu), employers are faced with questions about what measures they should take to protect their employees and their organizations when presented with a contagious disease. This update focuses on issues relating to employee leaves of absence relating to the H1N1 virus.

H1N1 Influenza Basics

Although health officials continue to learn more about the H1N1 virus, the Centers for Disease Control (CDC) has reached some preliminary conclusions about the disease. The symptoms of this new virus are similar to the symptoms of regular human flu and include fever, cough, sore throat, body aches, headache, chills and fatigue. A significant number of people who have been infected with this virus also have reported diarrhea and vomiting.

This virus is spreading from person to person, probably in much the same way that regular seasonal influenza viruses spread. The period during which the flu can be spread to others starts one day before an individual develops symptoms and lasts at least seven days after the onset of symptoms (in children it can be up to at least 10 days). According to the CDC, the estimated incubation period is unknown and could range from one to seven days, and more likely one to four days. The number of probable H1N1 virus cases in the United States remains small (2,532 cases as of May 11). An updated case count of confirmed novel H1N1 flu infections in the United States is available on the CDC Web site.

Employee Leave Issues

There are many policy and legal issues for employers to consider with regard to employee leaves due to contagious diseases. Employers should consider how to most effectively encourage employees to take leave when they are in fact sick, while limiting abuse by employees who do not pose a threat to the workplace. Each employer should also consider which policies make sense and apply them uniformly. Some of the legal issues to consider are discussed below.

1. Is the Leave Covered By the Family and Medical Leave Act (FMLA)?

The H1N1 virus may be sufficiently serious to constitute a serious health condition. A serious health condition covered by the FMLA must involve: (1) inpatient care in a hospital or medical care facility, or (2) continuing treatment by a health care provider. To qualify as "continuing treatment," the employee must have a period of incapacity of more than three consecutive, full calendar days. In addition, the employee must receive either:

(a) Treatment by a health care provider (or under the direction of a health care provider) two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist; or

(b) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment, such as a course of prescription medication

The two treatments referred to in (a) above and the initial treatment referred to in (b) above must be in-person. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

Examples of situations where leave relating to the H1N1 virus would be covered by the FMLA include:

  • An employee contracts the H1N1 virus, visits a doctor and is given a prescription for the virus
  • An employee contracts the H1N1 virus, visits a doctor and remains in the hospital overnight for observation
  • An employee takes leave to care for a spouse, child or parent with the H1N1 virus and the spouse, child or parent visits a doctor and is given a prescription

Examples of situations where leave relating to the H1N1 virus would not be covered by the FMLA include:

  • An employee has a mild case of the H1N1 virus and does not visit a health care provider
  • An employee takes leave to care for a spouse, child or parent who is believed to have the H1N1 virus, but the infected family member does not visit a health care provider
  • An employee is on leave as a precautionary measure because the employee has been exposed to the H1N1 virus
  • An employee does not go to work for fear of contracting the H1N1 virus

2. Does the Fair Labor Standards Act (FLSA) Require That the Leave Be Paid?

Whether to pay employees during leave taken by an employee for reasons relating to a contagious disease can be a difficult decision, both in determining company policy and ensuring compliance with the FLSA. An employer should, at a minimum, consider allowing employees to use not only any available sick time, but also any accumulated vacation or other paid personal time-off benefits. However, even if the employee is not eligible for vacation or other paid time off, employers may want to consider the importance to employee morale of paying any individuals kept away from work to protect the employer's work environment.

If an employer is considering not paying wages to employees who are on leave due to the H1N1 virus, the employer will need to consider whether this is permissible under the FLSA.

(a) Non-exempt employees

If the employee is not exempt from the overtime requirements under the FLSA or applicable state law (typically hourly employees), an employee will not need to be paid when on leave, assuming the employee does not perform any work.

(b) Exempt employees

Under the FLSA, if an employee is exempt from overtime requirements, the employee's salary may only be reduced under limited circumstances or the employer risks losing the exempt status. Exempt employees, therefore, must be paid for absences due to the H1N1 virus, unless the absence is covered by one of the following permissible deductions:

  • The leave is for one or more full days for personal reasons other than sickness or disability of the employee
  • The leave is for one or more full days due to sickness or disability of the employee, provided the employer has a bona fide sick leave plan
  • The leave (both partial and full-day absences) is covered by the FMLA
  • The leave is for a full work week

Given these limitations on when an exempt employee's salary can be reduced when absent due to a contagious disease, an exempt employee must be paid while on leave to retain the exempt status under the FLSA under the following situations:

  • Full-day absences when an employee's spouse has the H1N1 virus, and for precautionary reasons, the employer requires the employee to stay home during the incubation period
  • Full-day absences when the employer does not have a bona fide sick leave plan, an employee contracts the H1N1 virus and is absent from work, but the illness does not constitute a serous health condition under the FMLA

An exempt employee's salary may be reduced when on leave due to the H1N1 virus, without concern of losing the employee's exempt status, under the following situations:

  • The employee voluntarily takes leave because of a fear of contracting the H1N1 virus at work
  • The employee contracts the H1N1 virus, and the illness rises to the level of a serious health condition under the FMLA
  • The employee requests leave because a family member has the H1N1 virus, regardless of whether the leave is covered by the FMLA

In addition to the FLSA, state law should be considered when determining whether to pay employees who take leave for reasons relating to contagious diseases.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) and many state fair employment practices statutes prohibit discrimination against individuals with disabilities and may prohibit employers from making disability-related inquiries or requiring that an employee undergo a medical examination. Although it seems unlikely that telling at-risk employees who exhibit no symptoms to stay at home during a possible incubation period would be held to constitute disability discrimination, an employer assumes some risk any time it makes medical-related inquiries, requires medical examinations or makes a decision based upon a real or suspected medical condition.

As developments unfold relating to the H1N1 virus, the CDC and other officials will issue new recommendations and guidelines. Faegre & Benson LLP will monitor these developments and advise clients of additional legal considerations that may be triggered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.