How should employers handle employees who have the illness?
With respect to the FMLA, employees who are ill with pandemic influenza or have a family member with influenza may be entitled to FMLA leave. As a practical matter, however, such employees should be urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.
Employers may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam or remain symptom-free for a specified amount of time before returning to work.
Specifically, an employer may require the above actions of an employee where it has a reasonable belief — based on objective evidence — that the employee’s present medical condition would impair his or her ability to perform essential job functions with or without reasonable accommodation, or pose a direct threat to safety in the workplace.
In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly applied policy or practice that requires all similarly situated employees to obtain and present certification from their health care provider that they are able to resume work. Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions must be applied. Employers should be aware, however, that fitness-for-duty certifications may be difficult to obtain during a pandemic.
What can be done to manage fear and anxiety among employees?
Communicating good hygiene and infection control practices will help keep your work force healthy. Share materials that educate employees on the fundamentals of pandemic influenza. Remind employees of the resources available to them, e.g., employee assistance programs, vendor provided benefit counseling, etc.
Information about your pandemic preparedness and response plan should be distributed to employees. Proactive communication will also help gain employee trust, and prevent employee fear, anxiety, rumors and misinformation. Ensure that your communications are culturally and linguistically appropriate. There are various platforms of communication, and the best ones for your employees will depend upon your business. Hot lines, dedicated Web sites, brochures, posters, and telephone trees are just a few ways to communicate pandemic status and actions to employees in a consistent and timely fashion.
Craig W. Snethen is an attorney at Jackson Lewis LLP. Reach him at (412) 232-0196 or [email protected]. Employers are encouraged to contact Jackson Lewis’ Disability, Leave and Health Management Practice Group at [email protected] for additional information on how to best handle pandemic-related issues. Employers also are encouraged to attend a free Webinar available at http://www.jacksonlewis.com/events/specialreport.cfm?elid=1437.