Happy Holidays, with a Helping of the Flu


The 2017-18 flu season was unusually bad, and many employers found themselves stuck between meeting their staffing needs and avoiding the spread of a virulent flu strain.  While the 2018-19 cold and flu season is forecast to be less brutal, employers should take this opportunity to revisit their pandemic preparedness.  Following are some thoughts on preventing and preparing for the next big outbreak.

Pandemic Policies

The first line of defense against a widespread flu outbreak in your office is your handbook!  Employers can combat a pandemic in several ways.  First, consider offering free flu vaccinations.  We are well into flu season already, but consider a flu clinic in the fall, to vaccinate your employees before they get sick.  Experts recommend that vaccinations be given before an outbreak, and ideally at least two weeks before flu season begins, as it takes two weeks after vaccination for antibodies that protect against flu to develop in the body.  Clinics should be completed no later than the end of October.

In addition, have a clear Pandemic Policy in place.  If your business does not have one, consider one of the many policies available online, from your attorneys, or from human resources consultants.  If you already have a policy, make sure your employees are properly trained to comply with the policy—it won’t work if they don’t follow it!  A reminder in September is a good way to refresh employees on basic expectations.

What should your Pandemic Policy include?  There are a couple of key considerations:

  1. Preparedness Plan: before a pandemic hits, the company should have considered who its essential employees are, and methods by which it can avoid face-to-face contact between infected employees.
  2. Communication Plan: the HR department should have a way to disseminate information, similar to the methods used in the event of a weather or similar emergency closure.
  3. Sick Leave: employees who are infected should be placed on sick leave to avoid the spread of infection.  Those employees who have exhausted other forms of leave should be provided additional leave in a non-punitive manner to preserve the health of the broader workforce.
  4. Technological Adaptation: consider implementing telecommuting or other ways to facilitate remote work, to the extent that your business permits.
  5. Infection Control: implement infection control methods, and educate your employees!  Providing free tissues and encouraging frequent hand washing are all ways to limit the spread of germs if employees cannot work remotely.  For outward facing employees, make sure they know that normal social rules are suspended during a flu outbreak.  It’s ok not to hug, shake hands, or engage in other close contact, even if these activities are normally par for the course in your line of business.

Other Considerations

Being prepared is important when facing the possibility of widespread flu infection among your workforce.  But don’t let your zeal put you on the wrong side of the law.  For example, there are multiple groups who, based on religious or other sincerely held beliefs, refuse to be vaccinated.  If your company requires flu or other vaccinations, keep in mind that individuals with religious objections may be entitled to reasonable accommodations under certain circumstances.  See our article entitled “Vaccinations and Religion:  The Limits Are Set” for a more thorough discussion of the most recent case law on this issue.

Similarly, any illness implicates concerns under the Americans with Disabilities Act and the Family and Medical Leave Act.  While a short-lived flu is not generally considered a disability within the meaning of the ADA, it can trigger leave rights under the FMLA, and complications arising from the flu—especially for vulnerable populations including the elderly and immunocompromised—may well qualify as disabilities.  Be sure that your managers are up to speed on their obligations under the ADA and FMLA, and that they know when to escalate concerns to HR.

Bottom Line

In today’s ever-more-connected world, pandemics are a reality of life.  But they don’t have to cripple your business.  Have a well-considered plan in place before an outbreak, and be prepared to be flexible with the implementation of your leave policies and other practices to ensure that the business can function while accommodating sick employees.