September 18, 2009
Articles
Frequently Asked H1N1 Questions
Below are two frequently asked questions that employers have about the H1N1 virus.
Is the H1N1 virus a serious health condition under the FMLA?
We continue to get questions from our clients about whether to consider an employee (or a family member of the employee) who has contracted the H1N1 virus as having a serious health condition under the FMLA. The answer is: IT DEPENDS.
Just having the H1N1 flu will not in and of itself constitute a serious health condition under the FMLA. Remember that there are seven general ways an employee can have a serious health condition covered by the FMLA. They are: Inpatient care; absence plus treatment; pregnancy and prenatal care; chronic health conditions; permanent or long term medical conditions and conditions requiring multiple treatments. If the employee or family member is hospitalized as the result of the H1N1 virus, then that would qualify under the "inpatient care" type of serious health condition. However, the most likely type of serious health condition to apply to the H1N1 virus is "absence plus treatment."
In order to qualify for "absence plus treatment," an employee must have more than 3 consecutive, full calendar days of incapacity AND continuing treatment by a healthcare provider, which is either
- 2 in-person visits, the first within 7 days of the first day of incapacity and the second within 30 days of that day;or
- 1 in-person visit to a provider within 7 days of the first day of incapacity and a regimen of continuing treatment under the supervision of a health care provider, such as a prescription, but not including over the counter medication.
Individuals who call their physicians to report flu like symptoms are routinely told to stay at home and rest; they are not required to see a provider or take prescription medication. These individuals would not be considered to meet the "absence plus treatment" definition of a serious health condition.
However, if an individual falls in a high risk category, or if there are complications, a provider may want to see the individual and may prescribe treatment. In these situations, the individual would be considered to have a serious health condition under the absence plus treatment definition.
The bottom line is that Human Resources should analyze H1N1 situations on a case by case basis to determine whether employees are covered by the FMLA; don't assume that having the virus automatically means the employee is protected by the FMLA.
Can an employer legally require its employees to become vaccinated against the H1N1 virus?
This question comes up most frequently for health care organizations but some other employers have also raised the question.
First, it is important to consider whether the employer has a union. For non-union employers, the ADA or federal or state laws do not restrict an employer’s ability to require vaccinations, provided the employer allows employees to object to the mandatory vaccination for medical or religious reasons. However, as explained below, employers should be cautious about implementing such a requirement in the absence of strong business reasons.
If an employee objects to the vaccination due to a medical condition, an employer should consider whether the individual is covered by the ADA and, if so, whether there is an appropriate accommodation. For example, an employee who objects to a vaccination could be required to wear a mask at work as an alternative. The same accommodation process should be used if an employee objects to the vaccination for religious reasons.
Below are some government websites with some helpful information about H1N1:
http://www.pandemicflu.gov/
For an entertaining video, click on the 2009 flu prevention video psa link on the right.
http://www.cdc.gov/h1n1flu/business/guidance/
If you have questions about the H1N1's impact on your workforce, please contact Alice, Penny or a member of the Labor and Employment law section. |
 |
Alice Berquist, Attorney |
Penny Phillips, Attorney |
|
Felhaber, Larson, Fenlon & Vogt, P.A. |
Felhaber, Larson, Fenlon & Vogt, P.A. |
www.felhaber.com |
|