PANDEMIC A
SURVIVING
as there is a direct threat.
As part of your general pandemic
communications, encourage employees
at higher risk of complications from the
flu, such as those who are pregnant, to
contact their healthcare provider immediately. Immunization, however, cannot
be required. Medically related information about employees is confidential and
should be kept in separate confidential
files. Likewise, employers should not
disclose medical information about any
employees to coworkers.
What about non-sick pandemic-
related leave? A pandemic may result
in the closure of schools, daycare or
other child services, and employees can
request leave to deal with these situa-
tions. Although these are not absences
due to the illness of the employee or his
or her family member, it may become
an issue. Note: Non-serious illness
leave is not protected by FMLA and,
outside of company policy, there’s no
protection from “unexcused absence”
discipline or discharge for non-sick
absences. But even if there is no legal
protection, firing employees in this
situation can create a backlash of nega-
tive publicity. In addition, workers’-
compensation claims may result if
employees can track their own illness
to work, due to the organization’s
less-than-effective practices to prevent
infected employees from being at work
or by “pressuring” sick people to come
in. So modification of policies is the
best practice. I
DEALING WITH
ON-THE-
ROAD
ILLNESS
What is an employer’s responsibil-
ity when an employee gets sick
while on job-related travel? The
company still has a duty to show
concern for the employee and
assist in helping him or her find
care and return home.
REQUIRING EXTRA OR DIFFERENT WORK
Employers generally have discretion to require employees to put in longer work hours than those typically scheduled and to do any job necessary for the operation. A pandemic may be a situation in which additional
staff is needed to cover the work of those who are absent.
; Cross train all employees to cover priority operations during absences.
; Be aware of exempt vs. non-exempt status. Non-exempt employees must generally be paid time and one-half their regular rate for all hours worked in excess of
40 in a work week; exempt employees are not entitled to overtime pay or compensatory time.
; Meeting needs. Exempt employees can be shifted to hourly work if necessary.
But note that doing hourly work may destroy the salaried exemption for that week
and require payment of time and a half overtime for anything beyond 40 hours.
; Note restrictions. Employers may be prohibited from adding work hours for
employees who are on FMLA leave or who have a disability and are on a limited
work schedule due to the disability.
What should you be aware of when making alternative work arrangements? An employer may require telecommuting, assign people to
telecommute or ask employees to work from any other location. With the
exception of reasonable-accommodation provisions under the ADA, an
employer can also deny telecommuting.
EMPLOYEES MUST
; INFORM MANAGEMENT
of the illness
; FOLLOW ILLNESS/
SAFETY PROCEDURES and
not infect clients or others
; ADHERE TO THE
COMMUNICATION
PROCESS so the employer
can either check or be
informed of employee’s
ongoing status and safety
; SHARE EMERGENCY
CONTACTS, including local
individuals, family and
the hotel/accommodation
management
IF YOU MAKE ALTERNATIVE WORK ARRANGEMENTS:
; Create a system for tracking hours. There should be clear, detailed policies
regarding record-keeping of off-site work and any other production record. Also
include requirements regarding prior approval of overtime.
; Address calls. Supervisors and other employees should receive instruction about
frequency of calling people who are at home and at what hours to avoid overtime
complications. Frequent calls can interrupt healing and convert sick leave to paid
time. For salaried employees, any work in a day may require payment for the full
day (or week) unless the employee’s absence qualifies under the federal FMLA.
For employees on FMLA, significant interruptions can violate his or her rights.
; Set security policies. When employees work at home, company data may become
accessible to others, so it’s important that your IT department install security
systems.
EMPLOYERS MUST
; ASSIST EMPLOYEES in
finding local medical care
if needed
; HELP HANDLE ANY
HEALTH-INSURANCE
COMPLICATIONS due to
being out of state or out of
network
; AID STAFF WITH
REARRANGEMENT of
air or other transportation
; ASSIST WITH UNEXPECTED
EXPENSES due to illness
Although employers may not be
liable for extra hotel nights and
travel re-booking charges caused
by on-the-road illness, they do
have a duty to help facilitate their
employees’ return. This may mean
fronting, or guaranteeing, some of
those costs. The employee may
be charged back for these costs,
but the primary current concern
should be the welfare of the
employee.
For more in-depth research and legal advice, go to
www.DiversityIncBestPractices.com
Robert E. Gregg and Jennifer
S. Mirus, both partners in
Boardman Law Firm, can
be reached at rgregg@
boardmanlawfirm.com and
jmirus@boardmanlawfirm.
com, respectively.
82 DiversityInc
