Nonprofits -- so often focused on helping others -- may be finding that swine flu (H1N1) requires their attention in terms of employee health. Nonprofits have a long history of innovation and heroism in health care and in disasters; we need to be sure we manage the flu and its implications well.
Dear Rita in HR: I manage HR at our nonprofit and need advice in dealing with the expected impact of the H1N1 flu at our workplace. I've heard that from 25% to 50% of workers could be out sick at any given time. Among the questions I have: If I think an employee is sick with the H1N1 virus, can I send that person home? Can I require the employee to use sick/PTO leave? Can I dock the employee's pay? Can I tell the employee how long to stay at home? To prevent the spread of the flu, can I require an employee to work from home?
And if an employee is taking care of a sick relative, can I require the employee to stay out past the contagious period? If so, can I require that they use sick days for it? Can I require a doctor's note to return to work? HELP
Dear HELP: Your concerns are shared by nonprofits everywhere and because we are entering uncharted waters here, some of the answers remain as clear as mud. With respect to pay, there are different answers for nonexempt and exempt employees. Let's first talk about the nonexempt employee -- who is paid by the hour.
The nonexempt-hourly employee: Anita
If Anita comes to work exhibiting symptoms of H1N1, you can send her home. However, be careful not to send only females home or all people older than 40 -- you don't want to discriminate on the basis of a protected characteristic. You should pay Anita for the time she was at work. But check your state laws. For example, in California I recommend paying Anita for one-half of her scheduled work time because of what is known as "reporting-time" pay, e.g. if an employee shows up for work and you send her home, you must pay her for one-half of her shift, but not less than two hours. [Please note that each state has its own Labor Commission, but they go by different names, such as Workforce Commission or Department of Employment Development.]
Now that you've sent hourly employee Anita home, you don't have to pay her for the hours she does not work. Can you dock her accumulated leave banks? Absolutely. And what type of leave Anita uses depends on your nonprofit leave bank policies: whether to apply sick/vacation or Paid Time Off (PTO). You might want to allow employees to use vacation time to cover flu absences. If Anita has no leave time available, you might also want to tweak your leave policy to advance sick leave, recouping it when Anita earns it in the future. You might want to suggest to the staff that they "bank" at least 7 days of useable leave since, in most states, there is an initial waiting period to qualify for Short Term Disability benefits, should an illness be severe enough (long lasting) to warrant applying for those benefits.
The exempt employee: Carlos
The major difference between exempt and non-exempt employees revolves around when you can dock the employee's pay, and that can depend upon whether the exempt employee Carlos has any sick/vacation or PTO leave time available. The basic rule is that you must pay Carlos for the entire week in which he performs any work. So if Carlos comes to work and you send him home you should pay him for the entire week as regulations usually dictate that he should receive his full week's salary for working any part of the week. This is very much like the instance of jury duty where an exempt employee is paid for the entire week in which he or she serves on jury duty and performs any work at all.
However, if Carlos requests the leave, then you can dock his pay in full day increments, if you have a bona fide sick leave plan and sick leave has been exhausted under that plan. Remember that we are talking about docking pay, not using leave. While you can dock leave banks in less than full day increments, depending on your state law, you can dock the pay of an exempt employee only in full day increments. The rationale is that exempt employees are paid for completing work and responsibilities, not by the hour, so you cannot switch to paying by the hour when an exempt employee is out for part of a day.
And, as with hourly employee Anita, you can advance sick/vacation/PTO leave and recoup it against exempt employee Carlos' future leave accrual.
For both types of employees:
Requiring a doctor's note: the Centers for Disease Control (CDC) advises that people are typically no longer contagious after 24 hours of being fever free, so you can ask an employee to be fever free for 24 hours before returning to work. You can require a doctor's note certifying that (1) the employee was out sick and (2) the employee is medically fit to return to the workplace. However, the CDC is encouraging employers not to require doctors' notes in all cases as it will result in sick and contagious employees sitting in waiting rooms and clogging up the system. If any employee with the H1N1 virus is still not feeling well after being fever free for 24 hours, you should advise that employee to stay home until he or she feels better.
Working from home to limit infecting others
As an infection control strategy, you can require employees to "telework" (work from home), based on current public health information about pandemic conditions, or if your workplace becomes overwhelmed with sick employees. Just be careful not to designate which employees stay home using a discriminatory basis in violation of Federal Discrimination protections in Title VII or other anti-discrimination laws. However, you could consider allowing only exempt employees to work from home; with non-exempt hourly people working at home, you have no control over wage and hour issues, such as hours worked, overtime, or taking meal and rest breaks.
Remember that an employee who is out for more than three days, or has seen a doctor twice, may be eligible for FMLA leave (if you have 50 or more employees) and you can require a Fitness for Duty examination before the employee can return to work if you follow the FMLA regulations.
Is this an Americans with Disabilities Act (ADA) issue? Not unless complications arise. The ADA does not typically apply to such temporary conditions as the flu. Reminding employees to take health precautions such as washing and sanitizing their hands, covering their mouths when coughing or sneezing, and properly disposing of used tissues has no ADA implications. You are not regarding your employees as having a disability.
Encouraging flu shots
You cannot require an employee to receive any medical treatment. However, you can encourage employees to get vaccinated. One nonprofit is holding a raffle with a terrific prize; entries are employee proofs of vaccination. Other nonprofits are giving employees paid time off to get vaccinated or bringing a medical team in to vaccinate employees on site on a voluntary basis. This is a time to be creative in encouraging employees to receive the H1N1 vaccination without pressuring those employees who choose not to.
Employee caring for a sick relative
If either your hourly or salaried employee is caring for a sick relative, but is not sick themself, can you ask the employee to stay home for a while? The answer is yes, especially if the employee is exhibiting symptoms of the H1N1 virus. However, if the employee is without symptoms, you should talk to that employee about leaving work at the first sign of feeling sick. Again, employers should apply any "send-home" policy consistently. And of course we advise nonprofits once again to check state laws. Some states offer paid family leave to care for a sick relative. Generally there is a 7-day waiting period before the benefit kicks in.
Informing staff of sick leave policies and flu strategies: sample letter
At the very least, it's a good idea to remind staff at this time how your sick leave policies work. You might develop a set of guidelines specifically addressing the H1N1 virus in your workplace. Think about taking time to hold separate Q & A sessions on the matter with your exempt staff and hourly employees. At the bottom of this article is a sample letter to employees developed by the National Council of Nonprofits that you can consider adapting for your organization.
This detailed analysis is probably enough to send you home with symptoms rivaling those of the flu. But remember, this is a difficult and stressful time for both employers and those who are sick with the H1N1 virus. We need to work together, in the most positive way we can, to get through this flu season.
The bottom line for HR managers is applying your policy decisions with consistency, whether they be "by the book" or of a more generous nature.
Pamela Fyfe is an HR attorney with the Nonprofit Insurance Alliance Group (NIAC and ANI-RRG), who supports insurance members (customers) with their HR and risk management questions.