H1N1 and FLSA, are your sick leave policies compliant?

When struck with a pandemic flu outbreak, many companies will do one of the following:

• Continue working short staffed while employees are out with the flu
• Close their businesses for a day, or two, or several
• Send everyone home to “telework” in an effort to stop the flu from spreading

For employers, getting hit with a pandemic flu is one thing but getting slapped with a labor law violation on top of it for noncompliant sick leave policies can make things go from bad to worse.

To ensure that your company stays compliant with the Fair Labor Standards Act while still doing as much as you can to maintain “business as usual” during a flu pandemic, employers should consider the following:

1. Employees can do work outside of their job descriptions: When employees are out sick, employers may require healthy employees who are at work to pick up some of their ill colleagues responsibilities (even if they fall outside of the employees’ job descriptions). Just as long as the employees in question are 18 years of age or older, the FLSA places no limitations on the type of work they may be required to perform.
2. Employees must be paid the same hourly rate, regardless of whether they work on site or from home: To control the spread of a pandemic infection, employers may require employees to work from home. If your company decides to make these requirements, you, the employer must pay all hourly workers the same rate for all hours they worked from home as you would if they had worked these hours on-site.  Also, all salaried employees must be paid their full salary for any week in which they performed any work (subject to certain exceptions).
3. Employees who are required to work from home but cannot do not need to be paid: In the event that you shut down your workplace, thus requiring all employees to telecommute, you are only required to pay employees who are able to perform their job duties from home. The FLSA only requires employers to pay employees for hours they actually worked (whether at home or on site). That said, you should ask yourself if this will have an adverse impact on certain groups of employees. For example, if working at home requires a computer and internet access, is one group of employees much more likely to have these and thus be able to work at home? What can you as the employer do to help give equal access to the opportunity to work at home?
4. Letting employees “volunteer” during a personnel shortage can cause you a lot of trouble: This is because the FLSA has very strict requirements governing when you can and cannot allow nonexempt employees to volunteer time. Generally, all nonexempt hourly employees working for private sector, for profit companies, must be paid at least a minimum wage for all hours they work.

New bill may require employers to give sick employees five paid leave days

Legislators introduced a bill last week that, if passed, would require employers to provide at least five paid sick days to employees sent home (and told to stay home) with a contagious illness. The bill is called the Emergency Influenza Containment Act and was introduced by Representative George Miller (D-CA), chairman of the House Education and Labor Committee.

If signed into law, the Emergency Influenza Containment Act would take effect 15 days after being signed and expire after 2 years.

Who would be impacted?

The Emergency Influenza Containment Act would apply to businesses with 15 or more employees. Only employees who are sent home with a contagious illness will be eligible for the five paid sick days. Employees who choose to stay home on their own would not be guaranteed paid sick days.

Why the Emergency Influenza Containment Act?

According to Representative Miller, the motivating factor behind this bill was the fact that over 40 million workers do not have paid sick days. 

Data from the Bureau of Labor Statistics reveal the following:

• 39% of all private-sector workers don’t have paid sick days
• Of the lowest 25% of wage earners, 63% don’t have paid sick days

On top of all this, Center for Disease Control (CDC) statistics show that a sick employee at work infects one in ten of his or her co-workers.

Will the Act really serve its purpose?

Or will more employers opt to let workers with a contagious illness simply stay at work because they can’t afford to pay them for five days of absence?

When employers simply cannot afford to lose vital employees for 5 days at a time, the best course of action to take is prevention. Encourage employees to wash hands frequently, cover their mouths when they cough or sneeze and keep all surfaces in the office germ free.

Here’s what one company is doing:

To keep up the staffing levels necessary for “business as usual” and keep employees out of work for shorter lengths of time, Fidelity Investments is offering employees just-in-case prescriptions of Tamiflu. They’ve contracted with a physicians group that will come to Fidelity’s headquarters and do screenings to see if (given each employee’s medical history) it would be appropriate to prescribe Tamiflu.

This could help employees by lessening both the duration and the severity of their flu (when taken on the first day of illness) so they can return to work sooner.