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Keep your sick leave policies healthy during flu season
By Lauren Daming, Lauren Harris on January 31, 2019 at 11:50 AM

Work desk with dirty tissues, a coffee mug, and a sign on the computer that says "Sick Leave"For employers, flu season is a great time for a checkup – not with your doctor, but with your policies and procedures related to employee sick leave. Below are some common questions employers may have about how to handle employee sick leave during this flu season.

What are the benefits and risks of letting employees work from home while sick?

Situations vary, so employers should be mindful of whether the employee even has the ability to do meaningful work while under the weather. If an employee is in a position that allows for telecommuting, feels up to it, and the employer’s policies provide for the option, there may be benefits to allowing remote work, including:

  • Keeping the office healthy and germ-free.
  • Improving morale if employees feel like they can recuperate and work from home while not losing paid time off or increasing their own workload or the workloads of their colleagues.
  • Keeping projects on track and meeting deadlines.

On the other hand, potential downsides may include:

  • A limited ability to monitor hours worked.
  • The quality of work product may be affected by medication, symptoms, etc.
  • The potential to open up potential arguments for unfair treatment if telecommuting assignments are not permitted for everyone. 

An important thing to remember is that under the Fair Labor Standards Act, any employee who performs productive work must be compensated. If an exempt employee only performs one hour of work remotely, he or she must be paid for the entire day. Employers may deduct the non-working hours from a paid sick leave program, if applicable; however, pay may not be reduced, even if the employee does not have enough vested paid sick leave hours. Non-exempt employees need only be paid for actual hours worked and then the employer can count the unworked hours as paid sick time, if applicable, and adjust pay as necessary.

How should multi-state employers handle the varying state and local laws related to sick leave policies?

The law on paid sick leave is a patchwork of state and local provisions, so if your company is covered by one or more paid sick leave laws, it’s important to adopt a paid sick leave policy consistent with the laws that apply to your company. The most efficient way to navigate the various requirements is to consult an attorney and ask that your sick leave policy be reviewed and revised to comply with any state and local laws that apply. If certain requirements cannot be incorporated into a universal policy, employers should consider specific addendums that address the more stringent state or local requirements. 

When is the flu covered by the FMLA or ADA?

In some circumstances, employees may be covered by the FMLA or the ADA when suffering from the flu. An employee who is otherwise eligible for FMLA coverage may be qualified for FMLA leave for absences related to the flu if it becomes a protected “serious health condition.” Under the FMLA, the flu could be considered a “serious health condition” if it requires an overnight stay for treatment or incapacitates an employee for more than three consecutive days and either requires two or more treatments from a health care provider or one treatment from a health care provider with a course of continuing treatment (such as medication). Additionally, eligible employees may qualify for FMLA leave to care for a family member suffering from the flu if the family member’s case of the flu presents a serious health condition.

It’s less likely the flu would be considered a covered disability under the ADA because the flu typically doesn’t last long enough to substantially limit major life activities. But it is possible that employees suffering from the flu could still be covered by the ADA if they are “regarded as” having a disability. In rare cases when the flu could be considered an actual disability, ADA leave could be necessary for employees who have already exhausted FMLA leave or who are not eligible for FMLA leave at all.

While ordinary cases of the flu are unlikely to trigger the FMLA or ADA, it’s important not to forget that the ADA or FMLA may come into play in these scenarios. It’s a good idea to keep the FMLA and ADA on your radar when dealing with any employee absence for illness.

Who may be covered by paid sick leave laws but aren’t covered by the FMLA or ADA?

Paid sick leave laws can fill the gaps for conditions that aren’t considered serious health conditions under the FMLA or that don’t substantially limit major life activities under the ADA. They may also cover employers and employees who aren’t covered by the FMLA and ADA either because the employer isn’t large enough (ADA/FMLA) or because the employee hasn’t been at the employer long enough or worked enough hours to qualify (FMLA).

For any employer covered by paid sick leave laws, any existing leave policy should be tailored to comply with applicable law and to outline the specific rights and responsibilities found in the law. For example, many paid sick leave laws specify the rate at which employees must accrue paid sick leave and how much of this leave can be carried over from year to year. Employers should ensure that existing paid leave policies are at least as generous as applicable paid leave laws. 

 What about employees who abuse sick leave policies?

Just like any other type of leave, sick leave presents the potential for abuse. Ordinarily, employers can manage this by keeping good records and monitoring absences for patterns such as those clustered around weekends or holidays. Employers should also enforce the policies they already have related to absences, such as specific procedures for calling in sick or providing doctor’s notes in certain circumstances. If an employer sees a problematic pattern, it may be time for a discussion with the employee. This is a good opportunity to set expectations or to learn if the employee needs accommodations or other assistance.

In terms of a larger-scale solution, many employers find it beneficial to transition to a policy that does not differentiate between types of absence (vacation, sick leave, etc.). When companies have a specific amount of paid time off allocated to sick time, employees often feel like they need to use this time, whether or not they are sick.

What’s the takeaway?

Flu season invokes a cross-section of federal, state, and local laws that may affect employee leave. A quick checkup with your company’s policies related to leave can help ease your HR department’s suffering next time the flu hits your office.

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