How can you deal with problems a potential pandemic may cause at your company?
A pandemic would create many issues with employee leave. Employees may be eligible for leave under the Family and Medical Leave Act if they or their qualified family members contract the swine flu. If eligible, an employee is entitled to up to 12 weeks of unpaid FMLA leave to care for this health condition. You should review and update your leave policies to comply with the FMLA and take advantage of its protections.
You can draft new sick leave policies to provide or expand sick leave to employees with the swine flu. This can be either paid or unpaid leave, and can be granted through sick days or personal time off.
You also might want to consider alternative work arrangements to ease the impact of a pandemic on your workplace. You could allow employees to telecommute from home to avoid the spread of illness. You should create a detailed plan to cover telecommuting, especially the recording of work time. You may also consider flexible scheduling to stagger employee work times and minimize face-to-face contact among employees and the risk of spreading disease. You need to be aware of your business and customer needs and implement a policy to cover any flexible scheduling arrangement.
What other problems could an H1N1 outbreak cause?
You need to develop cross-training programs in case a large number of employees are unable to work due to illness. You must avoid any problems with the Fair Labor Standards Act when implementing these types of programs. If exempt employees are utilized in nonexempt positions while attempting to continue operations, they risk losing their exempt status. You will then be required to pay that employee overtime for all hours worked over 40 hours in the workweek. You should consult with legal counsel before instituting any cross-training programs to ensure that employees’ exempt status will be preserved.
You also need to avoid any discrimination or retaliation against employees during a possible pandemic. Treat all similarly situated employees the same and refrain from taking any adverse employment actions based on an employee’s use of leave or any employee complaint.
Examples of potentially discriminatory or retaliatory actions include:
- Only cross-training younger workers
- Employing a social-distancing program that separates workers perceived to have a high risk of contracting swine flu
- Only allowing certain employees to telecommute
- Disciplining or terminating employees for taking FMLA or other medical leave in connection with a pandemic
- Retaliating against an employee for filing a complaint with OHSA regarding a swine flu outbreak at your company.
Todd L. Sarver is a member of the labor and employment counseling and litigation practice at McDonald Hopkins LLC. Reach him at (614) 458-0042 or [email protected]. Brendan Fitzgerald is an associate of the labor and employment counseling and litigation practice at McDonald Hopkins LLC. Reach him at (216) 430-2009 or [email protected].