6 Q&As: Managing Flu Season in the Workplace

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6 Q&As: Managing Flu Season in the Workplace

With flu season in our midst, many employers face challenges in managing sickness in the workplace. These challenges can include managing absenteeism, reducing or managing the prevalence of sickness in the workplace, supporting employees who must care for sick children, and in more rare cases, dealing with longer-term medical issues. Here is a Q&A guide on some of your most frequently asked questions related to these topics.

Q: How many sick days do employers typically provide?

A: On average, organizations usually provide 6-8 paid sick days annually, though many employers incorporate sick time into a paid time off bank.

Some industries tend to provide more sick time, particularly healthcare and non-profit organizations, which typically offer double the amount of sick time that other organizations provide.

Q: How should we handle pay for exempt employees who are sick?

A: Under the Fair Labor Standards Act (FLSA), if an exempt employee misses less than one full day of work due to illness, you may not deduct his or her pay for the absence. This means, if they go home early or come in late due to illness, you may not dock their pay. Conversely, with hourly employees, your organization may deduct pay for any hours not worked due to illness, including a full day or less than full day.

Also, under FLSA, your organization is not obligated to provide pay for vacation or sick days (unless other state laws mandate this). Nonetheless, many employers provide these benefits to help handle pay situations when employees are sick.

Q: How can we prevent sickness from spreading in the workplace?

A: The workplace can be fertile ground for sickness to spread with employees working in close proximity to one another, especially common colds and flus. Here are a couple common ways to reduce the likelihood of this happening:

  • Provide flu shots once a year
  • Encourage sickness prevention via hand sanitizers and office cleanliness
  • Offer the ability for sick employees to work from home
  • Allow sick employees to stay at home and use their sick time if they are ill or contagious
  • Support employees' well-being by providing wellness resources/education and work-life balance

Q: What should we do when employees need to care for sick children?

A: Missing work to care for sick children is a challenge facing many working adults, who often feel they don't have enough paid sick time or flexible work arrangements to cover the days they need to take care of them.

There are a number of options you can offer in these circumstances. First, you can allow them to work at home, if possible, to care for their child. Second, you can provide a back-up/sick child care option or resource for employees to use. Third, you can allow them to use paid time off, make up work hours, work a flexible schedule, or provide family leave. Finally, if the situation warrants a serious health condition, providing FMLA leave may be advisable.

Q: What should we do about excessive absenteeism?

A: As a business, you need to institute and enforce acceptable boundaries for absenteeism in order to run your business smoothly via internal policies and procedures, such as an attendance policy.

But excessive absenteeism due to illness may actually be due to a legitimate medical condition which is covered by federal and state laws. In these cases, employers are obligated to comply with the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), and must pursue the appropriate course of action.

For other more common illnesses and issues that are acute in nature, if an employee is not complying with your policy or if you have a legitimate reason to believe that abuse is taking place, you may pursue whatever disciplinary action is necessary, so long as it's consistent with past precedents and documented policy.

Q: How should we handle issues of work coverage when an employee is sick?

A: Make sure your organization has the appropriate back-up coverage for when an employee is out of the office ill. Succession and workforce planning of this nature is essential to the ongoing productivity in your organization.

Q: How should we manage a longer-term illness?

A: Unfortunately, sometimes illnesses that affect the workplace are not just common flus and colds. Prolonged illness brings many unanticipated challenges to the workplace: arranging for medical leave (short term disability, FMLA, personal leave, etc.) preparing for return to work, dealing with short or long-term accommodations, and handling staffing or work coverage issues.

These situations can often be stressful and difficult for the employer and employee alike, so it's important to approach them with as much patience and support as possible. Usually, when employers make collaborative arrangements with employees to help them in these situations, to the extent that it business operations are not significantly affected, they tend to be effective.

Employee illness is one of the most common issues employers face in the workplace, and in our experience, one of the most difficult ones to manage. Approaching this flu season and employee illness in general in a supportive but tactical manner can help you better manage your employees, their needs, and those of your business.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

View ERC's Absence Management Practices Survey Results

This report summarizes the results of ERC’s survey of organizations in Northeast Ohio on practices related to attendance and unscheduled absence.

View the Results

What is ADA?

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The Americans with Disabilities Act (ADA), enacted in 1990 and amended in 2008, prohibits private employers with 15 or more employees, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in employment activities. Such activities include hiring, termination, training, promotion, compensation, and other terms and conditions of employment.
Read this article...

What You Don't Know

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Ignorance may be bliss, but it won’t keep you out of court. Here are a few scenarios in which what you don’t know could truly hurt your organization.

Scenario 1: Till adverse employment action do us part

Here’s what you know. Joe and Mary are husband and wife. They both work for your organization. Joe’s performance and attendance is poor. Despite multiple meetings, warnings and disciplinary actions, he consistently doesn’t show up and even when he does, he doesn’t get much accomplished. As a result, you plan to let Joe go later this week.

Here’s what you don’t know. For the last three months, Mary’s new supervisor has been harassing her. The conditions have gotten so bad that she just filed a sex discrimination charge with the EEOC.

Here’s how this could hurt you. If you fire Joe, you may also get sued for retaliation – and lose. In early 2011, the U.S. Supreme Court ruled that an employer unlawfully retaliated against an employee after his fiancée filed a sex discrimination charge with the EEOC and it then fired him three weeks later. As a result of this ruling, employers must be mindful of the relationships between employees when taking any adverse employment actions that could be construed as retaliatory in nature, even if the potential third-party “person aggrieved” wasn’t engaged in any protected activity.

Scenario 2: It’s in the details

Here’s what you know. Emily works for your organization. She recently applied for a new position in the organization that would give her a promotion and an increase in pay. While considering Emily for the promotion, you note that she has displayed a consistent pattern of clerical errors and a lack of attention to detail in her work. You tell Emily that you believe she may lack the concentration or mental capacity to handle the additional responsibilities of the new position, and as a result, you deny Emily the promotion.

Here’s what you don’t know. Emily was recently diagnosed with a learning disability.

Here’s how this could hurt you. Based on the final rules for the Americans with Disabilities Amendments Act of 2008, taking an adverse employment action because an employee is “regarded as” having a disability is a no-no, and the definition of “disability” has been greatly expanded. In this scenario, Emily could file a claim with the EEOC that you regarded her as having a mental impairment or learning disability, and as a result, discriminated against her by denying her a promotion.

Scenario 3: Unemployed need-not apply

Here’s what you know. You have a job opening for a production manager at a facility in New Jersey. You’ve had a lot of turnover at this position, which your management team at your headquarters in Canton, Ohio, believes is the result of a lack of qualified job candidates. As a result, two weeks ago they ordered that you change your online job ad to include “must be currently employed” as a requirement of the position. You made the change at the beginning of the month, and have already started interviewing candidates this week.

Here’s what you don’t know. This week an unemployed former production manager filed a discrimination charge against your company with the Commissioner of Labor and Workforce Development in New Jersey.

Here’s how this could hurt you. As of June 1, 2011, employers in New Jersey are prohibited from knowingly or purposefully publishing a job posting in print or on the Internet that states, among other things, that current employment is a job requirement. In this case, your organization could be fined $1,000 for its first violation – up to $10,000 for a third (or subsequent) violation.

New Jersey is the first state to enact a law protecting unemployed workers from employment discrimination. New York has adopted the same legislation.

6 Ways to Manage New ADA & Legal Changes

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The final 2011 ADA regulations had important implications for HR and managers when managing employees’ medical conditions and impairments. Here are six ways we gave to strategically manage this issue in particular and other legal changes that may affect your business in the future.

Meet with your HR and management team. When any new employment law or regulation is implemented, as a strategic measure, it’s important for your HR team and organization to determine how this law will impact your organizational objectives. Meet with your management and HR teams to discuss how the law or regulation will influence your HR operations, affect your ability to attract and retain key talent, and prompt new liabilities or risks that could affect your bottom line or operations. From there, you’ll need to determine what tactical issues need to be addressed, such as implementing training to your management staff, revising and communicating policies, adjusting HR processes, and incorporating new risk management processes.

Revise policies. In the case of the final regulations pertaining to ADA (as well as other laws and regulations), it’s important that you review your policies and employee handbook to ensure that language is adjusted to meet the changing definition of disability and is consistent with the language within the regulation. Remember, the definition of disability has become much broader, so your policies should reflect this change.

Review and adjust accommodation process. No longer is focusing on the question of whether an illness or condition is a disability the focus of the ADA law, as many conditions will now fall under this definition. Rather, the changes to ADA emphasize developing accommodations for employees with impairment. Key questions you should ask are how is your accommodation process administered? Is an HR representative in charge of this process or are line managers? With the new regulations, it’s recommended that HR:

  • Lead and manage the accommodation process consistently throughout the organization versus managers. This ensures that the process is run the same throughout the organization, reducing potential liabilities.
  • Approach the ADA process like FMLA and use standard forms and processes instead of un-standardized doctors’ notes and evaluations. Consider your approaches during the pre-employment process with applicants as well as when current employees develop an illness or condition while they are employed.
  • Create a standard internal form for employees to use which provides a checklist of possible conditions or ability to write the condition or impairment and summarizes alternative accommodations that apply to the condition, or a guide for a discussion of these accommodations. The form may also include a doctor’s signature if necessary versus using doctor’s notes.

Review job descriptions. Ensure that job descriptions specify the essential job functions of each job – and also be sure that these essential functions are actually essential. The courts have been critical of how essential functions are defined. Also, be cautious of defining too many tasks as essential. A good rule of thumb is using a job analysis to rate or rank how important and critical certain tasks are to a job and how frequently they are conducted, and to account for job incumbent and supervisory perspectives.

Train and communicate. When a policy or process is revised, be sure to communicate the changes as soon as possible to managers who are in charge of implementing and executing them. With ADA, front-line managers will likely be the first to know about an employee’s illness or condition and need to understand how to handle requests for accommodations such as:

  • Job modifications
  • Schedule changes
  • Environmental issues (temperature, work setting, stress, exertion, etc.)
  • Motor or cognitive impairments
  • Mental issues (depression, anxiety, etc.)

Managers need to know how to respond, act, and when to refer to HR – and how negative or inappropriate reactions to these requests or even knowledge of a medical condition can cause liability or risk to the organization. They also need to be trained on how to effectively manage employees with mental or physical impairments in terms of scheduling, direction, support, and even modification of interpersonal interactions.

Last but not least, stay ahead of the curve. In HR, we unfortunately tend to react to a problem, a new law or regulation, or a new fad (i.e. what every other employer is doing) versus staying ahead of trends and upcoming legal agendas and issues that will affect our business. This often results in poorly executed tactics, lawsuits, and other issues that could have been avoided had we been more strategic. By being proactive and staying on top of changes emerging in the market, we can help our business manage its risk, legal, and HR issues more effectively, and become a more strategic partner within our management team.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

Additional Resources

ERC provides a number of resources to help you stay updated on important legal and HR trends and issues, as well as training for your managers on employment law and employee relations.

ERC Training
To visit our ERC Training Program and Courses page: click here.

Supervisor & Management Training
We offer several courses for supervisors and managers on topics like employment law, workplace bullying, and general employee relations topics like communication, interpersonal skills, and more. To learn more, click here.

HR Project Support
From employee handbook and policy updates to job description revisions, we offer assistance with HR projects to help your organization stay compliant. For more information, please contact consulting@yourerc.com.