Earlier this week, as I peeked up from my bed covers, I heard the lovely, comforting sound I heard when I was a kid.

“Come on Down!”

“The Price is Right” was starting.

Sure, Bob Barker is no longer the host, but I didn’t care.

At that moment, when my stomach was churning and the room was moving a bit, all I was hoping for was a round of Plinko. (I did, however, miss the ultimate Plinko win a few weeks back.)

Well that, and maybe a spin of the wheel where someone wins a $1000.  (And I missed this record-setting set of spins too.)

Netflix? My head hurts.

Bingeing on a show? Too much thinking.

But at 11 a.m. — like chicken soup — The Price is Right was there for me.

Is it the classic show for working folk to watch when they’re sick? Who knows.

With an iPhone by your side and the e-mails piling up, it’s hard to just rest and let your body recover.

In fact, I would argue that it’s harder in this 24/7 work environment to just tune out. But one of the myriad of bugs going around this winter laid me up for a few days.

Sure, I could’ve read up about paid time off, or debate whether flu shots should be required.

But where’s the fun in that?

Employment laws are great — except when you’re the person you is the subject of them. Thankfully, my firm (and our clients) are understanding. Better to stay home and not get others sick, than to come in.

We know not all employers are like that. However, this winter, it seems to have shifted a bit — at least informally.  The messages have been getting out — don’t come into work sick.

Spring is coming. And work resumes.

But The Price is Right is, at least for me, a reminder that taking care of yourself is eternal.

 

As the temperature starts to dip this week and our thoughts start turning from fall to winter, so starts slow climb up the absenteeism ladder.

Around many workplaces, flu shot clinics are starting to pop up.  Not surprisingly, studies show that flu shots reduce the rate of absenteeism.  (Employees who get vaccinated get sick less — go figure!)

The Connecticut Department of Public Health has a whole website devoted to employers who wish to run a flu clinic. And the CDC has lots of information like the button below.

Learn about Who Needs A Flu Vaccine.
http://www.cdc.gov/flu/protect/whoshouldvax.htm

But can an employer mandate that employees get a flu shot? Around Connecticut, numerous healthcare institutions started instituting mandatory vaccinations for their workers…and the local press made it a big issue.

Lost in that so-called debate, however, was the clear-cut guidance that came out from the Commission on Human Rights and Opportunities.  In an article last December, the CHRO said unequivocally that there was no issue with mandatory flu shots.

Charles Krich, principal attorney for the Connecticut Commission on Human Rights and Opportunities, says this corporate policy [of mandatory flu shots] does not violate constitutional rights. It also does not qualify as discrimination.

“About a hundred years ago, the Supreme Court said the state absolutely has the right to require vaccinations of people to protect the public health,” Krich explained.

Despite the undisputed public health benefits to such a policy, State Senator Joe Markley introduced a bill earlier this year into the Connecticut General Assembly that would ban such mandated vaccinations.  Thankfully, the bill went nowhere. 

Employers should, however, still be mindful of federal laws that mandate some accomodation of an employee’s religious beliefs and may, on a case-by-case basis, consider some flexibility.

Many hospitals have created a system to analyze requests for exceptions to the policy and created an exception as follows:  “Those who cannot receive the flu vaccine, whether for religious or medical reasons, will be required to properly wear a protective surgical mask over their mouth and nose when within 6 feet of any patient and when entering a patient room during the influenza season.”

Employers with unions and collective bargaining agreements should also be mindful that some have argued that mandatory flu shots should be a bargained-for term of employer. Last year, the NLRB ruled that a hospital did not violate the federal labor laws when instituting a mandatory policy over the objections of the nurses’ union.  But that decision relied on a broad “management rights” provision so employers should have their own situation reviewed by their labor counsel.

 

Following up on my earlier post, Senator Christopher Dodd (D-Conn.) announced this week his plans to introduce emergency legislation that will guarantee paid sick days for those who are infected by the H1N1 virus.

In a statement, Sen. Dodd indicated that this issue required immediate action:

“This isn’t just a workers’ rights issue – it’s a public health emergency. Families shouldn’t have to choose between staying healthy and making ends meet,” said Dodd. “But if staying home means you don’t get paid, that’s an impossibility, especially for families struggling to make ends meet in this tough economy.”

 

“Workers should have paid sick leave as a matter of basic fairness,” Dodd continued. “But now sick leave is a matter of keeping Americans safe from this pandemic – and from the next one, whatever it may be.”

The proposal is likely to mirror similar measures introduced in the House — either on an emergency or regular basis — by several Representatives including Connecticut’s Rosa DeLauro who introduced the Healthy Families Act back in May

As a I said before, there are legitimate arguments both before and against paid sick leave bills in general.

But it seems a dangerous road to go down to single out the H1N1 flu as the need for emergency legislation on the subject.  After all, the mortality rate for adults for the swine flu appears to be no higher than for seasonal flu. There are also illnesses that are far more severe that would be left out of such a measure; why should we single out H1N1 — particularly because we might be starting to plateau on the numbers of cases in this wave? 

The paid sick leave measure can and should be debated on its own merits; tying it to an illness only seems to make an important measure feel like a political move.

Way way back on April 28th of this year, I wrote a simple post entitled "Paid Sick Leave Bill Moves Forward; Will Swine Flu Be Tipping Point"?

Back then, the Connecticut General Assembly was debating a Paid Sick Leave bill and one of the groups supporting the measure used the swine flu (H1N1) outbreak as a reason why the measure should pass. Ultimately it did not, but I discussed why using that particular illness as a reason for a paid sick leave bill would be a bad idea. (And, it should be noted, I pointed out that there were a number of good arguments why it should be passed; H1N1, however, wasn’t one of them.) 

Flash forward now over six months later and now some members of Congress are again raising the swine flu as the basis for a measure for paid sick leave.

 Rep. George Miller,  Chair of the House Committee on Education and Labor and others introduced emergency temporary legislation yesterday that would guarantee five paid sick days to any employee sent home or directed to stay home by an employer because of a contagious illness. (H/T Workplace Prof Blog)

The bill is still a few weeks away from a hearing and consideration but expect to hear more about this in the upcoming weeks.  Again, there are pros and cons to a paid sick leave bill, but for the same reasons I’ve outlined before, using the H1N! flu as a reason for the measure now shouldn’t be one of them.  What about all the people who have suffered for years with just a seasonal flu, for example.

Of course, when the CDC is putting out public service announcements that encourage employees to stay home if they are sick, a measure like this is not unexpected. 

H1N1 (Swine Flu)

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H1N1 (Swine Flu) Widget. Flash Player 9 is required.H1N1 (Swine Flu) Widget. Flash Player 9 is required.

The Washington Post has a sobering article out this morning about the expected return of swine flu (H1N1) virus in the upcoming weeks.  Indeed, the experts cited in the article basically state that it’s not a matter of "if", but "when" this second wave will hit.

While flu viruses are notoriously capricious, making any firm predictions impossible, a new round could hit the Northern Hemisphere within weeks and lead to major disruptions in schools, workplaces and hospitals, according to U.S. and international health officials.

"The virus is still around and ready to explode," said William Schaffner, an influenza expert at the Vanderbilt University School of Medicine who advises federal health officials. "We’re potentially looking at a very big mess."

And for those employers awaiting the development of a vaccine, the article suggests that the first batches may not be ready until the flu’s expected peak in October.

The first batches of swine flu vaccine are not expected to become available until mid-October, assuming studies indicate it is safe and effective. And officials have yet to answer many key questions, including how many doses will be needed. If it is two, as many suspect, it could take at least five weeks after the first shot before vaccinated people are fully protected.

For employers, thus, now is the time to review your contingency planning and finalize your policies on how you will address things such as a sick person at the workplace or mass absences for a period of time.

Late last week, the CDC released updated guidance for businesses of all types regarding the H1N1 virus. While the guidance isn’t revolutionary, it does provide some specific steps for employers to take.  Among them: 

  • Encourage sick workers to stay home and away from the workplace, and provide flexible leave policies.
  • Encourage infection control practices in the workplace by displaying posters that address and remind workers about proper hand washing, respiratory hygiene, and cough etiquette. These posters can be found on the Germ Stopper: Posters and Other Materials page.
  • Provide written guidance (email, etc.) on novel influenza A (H1N1) flu appropriate for the language and literacy levels of everyone in the workplace. Employers should work closely with local and state public health officials to ensure they are providing the most appropriate and up-to-date information (e.g., the CDC H1N1 Flu website).
  • Provide sufficient facilities for hand washing and alcohol-based (at least 60%) hand sanitizers (or wipes) in common workplace areas such as lobbies, corridors, and restrooms.

The next few months may be challenging, but preparation — not panic – is key to this next wave of flu that is predicted.

While the current outbreak of H1N1 Influenza is turning out (for now) to be less lethal than previously thought, the EEOC released guidance this week (available here) to help employers prepare for a possible pandemic and still comply with the ADA.

Some of the guidance is lifted from previous statements of the EEOC but applied to this situation. For example, the EEOC again reminds employers of the limits of making medical-related inquiries to employees:

Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.

The EEOC also goes out of its way to emphasize that there are ways an employer can legally survey its workforce before a pandemic strikes to allow it to be prepared.  In fact, it provides a model survey for the employer to use.  

Lastly, the EEOC addresses infection control measures and states what should be obvious: "Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."

It’s a helpful reminder to employers that even in times of crisis, we remain a nation under the rule of law.  Let’s hope that this current outbreak wanes and that it does not reoccur in the fall in a more virulent form.

 

Since my first post on H1N1 Influenza (a.k.a. Swine Flu, 2009 Flu, Mexican Flu — or whatever else the CDC or WHO is now calling it — [see UPDATE below on the preferred usage of the term H1N1]) on Sunday, nearly every media outlet has eitherhyped or overhyped the crisis. I’ve waited until week’s end to try to see if we could get some proper perspective on things. 

As of this afternoon,there are still no confirmed cases of H1N1 flu in ConnFrom the Public Health Image Library - CDC - 1976 Swine Flu outbreakecticut., but I’m not sure if we have yet gotten the perspective in focus yet, if the school closings this week are any guide.  

Some fellow bloggers have tried to provide some context in an admirable fashion. The Ohio Employer’s Law Blog summarized each of those blogs here, as follows:

[The big] story of the week is the swine flu. I’ve already covered this issue, as have some of my fellow bloggers: Michael Moore at the Pennsylvania Labor & Employment Blog, Catherine Barbieri at the FMLA Blog, Michael Haberman’s HR Observations, HR World, The Word on Employment Law with John Phillips, and Dan Schwartz at the Connecticut Employment Law Blog (who I believe was first in bringing this issue to employers’ attention). CCH also has an excellent resource page covering this issue.

But where does that leave most employers. If the traffic to this blog is any indication — still scratching their heads. So, let me try to put some of the issues in a slightly different framework for employers to think about. 

1.   Preparation & Communication

While large corporations have likely had time over the last years to develop a crisis-management guideline to deal with natural disasters or pandemics, smaller companies haven’t had that luxury. The CDC checklists should be required reading for most employers by now with notices available on their website as well.  Employers should use their bully pulpit to convey accurate information to their workforce along with preventative measures that employees can implement on their own.  For employee questions, this FAQ is a great place to start. 

But beyond that, employers should think about (though not implement as of yet) what it’s plans may be if this outbreak becomes more widespread and more serious.  Will you allow for telecommuting? Is your infrastructure set up so that you have the capability TO telecommute? Will you implement special pandemic flu leave policies to prevent employees from infecting others in the workplace?

You don’t need answers to all these questions yet but you should start to anticipate what those questions may be. 

2.   Addressing Day-To-Day Issues — The sick employee or the closed school

If and when the H1N1 Flu becomes more prevalent in the community, specific employers may be impacted directly.  For school systems, for example, the CDC has released guidance this morning on how schools should address an outbreak.  The CDC has already released guidance as to how a community should react to such an outbreak.

Employers may have more practical considerations though that they will need to deal with. For example, if an employee’s child becomes ill, can that employee take FMLA leave? (Probably, though review your policies.) If the employee is sick, can you ask that employee to stay home or work from home during the length of the illness (Maybe but again, check your policies.)

But a tougher question comes up when a school is closed. In that situation, parents may need to stay home or make arrangements to care for a healthy child. What then? John Phillips has some excellent suggestions here, which can be summed up in one phrase: Be sensible and flexible:

I’d be reluctant to fire an employee who stays home with a child whose school has closed because of swine flu. If you’re concerned about setting a bad precedent, I wouldn’t be too concerned. After all, a national health emergency has been declared. I’d be more concerned about bad publicity or a creative legal theory under which the employee might sue you.

The Job Accommodation Network has also just released this guidance on considering the needs of employees during a flu outbreak

Continue Reading Update: H1N1 Influenza (Swine Flu) – What Employers Need to Know Now to Keep Their Workplace Sane and Safe

A key legislative committee yesterday gave its approval to a bill which would mandate that certain employers give employees paid sick leave.  You can keep tabs on the bill status here

I’ve discussed the bill several times before and it appears that the basic structure of paid sick leave bill (H.B. 6187) has remained unchanged. The Judiciary Committee’s passage of the bill suggests that the measure may now go to the House floor for a vote in the next few weeks.

The measure would require businesses of 50 or more employees to grant workers one hour of paid sick time for every 40 hours of work with a cap of 6.5 paid days per year.  You can find the text of the bill here

There are obviously valid arguments both for and against the bill. 

The CBIA, for example, has opposed the bill, contending that: it would make Connecticut the only state in the nation to mandate paid sick leave; increase labor costs significantly for any employer that currently provides anything less than the new sick-time mandate; block employers from crafting workplace personnel policies that best meet their employers’ needs; and, immediately make Connecticut businesses less competitive particularly in a recession.  

In today’s Hartford Courant, however, the director of Connecticut’s Working Families Party (one of the groups supporting the measure) appeared to add a new reason for supporting the bill: swine flu.  According to the Courant, Jon Green, director of the Connecticut Working Families, stated:

It’s an illustration why it’s particularly important, and in everybody’s interest, for employees to have some paid sick days….The advice given by the Centers for Disease Control … is that people who have symptoms should stay home.

But in a difficult economy, people can’t risk losing their jobs or even just a few days’ pay because they have an illness.

Whether intentional or not, using the swine flu outbreak as a rationale for passing this bill would be mistake.  If the swine flu outbreak turns more serious, it will be up to everyone (not just businesses) to be responsible enough not to spread illnesses.  Indeed, it’s not unreasonable to expect that during a flu pandemic many businesses will adopt short-term flexible work arrangements and telecommuting policies to keep the risks of affecting healthy workers to a minimum, thus eliminating the need for a mandatory paid sick leave bill. 

In addition, if the flu is serious enough, it may be a "serious health condition" entitling that employee to FMLA protection. 

Before the legislature passes the measure, it ought to consider and debate the long-term ramifications of paid sick leave on business and the economy, as well as overall public health.  History has shown that such outbreaks — even serious ones — come to an end.   

As I said before, there are some very valid reasons for passing the measure.  But using the swine flu outbreak to justify the measure isn’t one of them.