H1N1 and the Workplace

 

 

 

As of September, nearly 600 people in the U.S. have died, and over 9,000 have been hospitalized, as a result of the 2009 H1N1 virus, commonly known as “swine flu.” Not surprisingly, our firm has received many questions regarding how employers should handle the threat of swine flu in the workplace. The following are some suggestions employers may wish to implement in order to protect their employees and their businesses.

1. Policies and Procedures.

First, it may be necessary to update existing policies and procedures. Swine flu implicates several policies most employers already have in place, including the sick leave/paid time off, vacation, attendance, Family and Medical Leave Act (FMLA), and Americans with Disabilities Act (ADA)/reasonable accommodation policies. Some of these policies may need updating in order to comply with recent changes in state or federal laws or conform to the latest health recommendations. For example, employers with inflexible attendance and leave policies may want to amend them so that employees with influenza symptoms will stay at home rather than come to work for fear of losing their jobs.

 

Second, employers may wish to implement new policies and procedures to address issues such as telecommuting or sending sick employees home. Telecommuting, if possible, is one way to keep employees from being exposed to co-workers, clients, or customers who may have the H1N1 virus. It is also a solution for employees who are not sick themselves but must stay home with their children if schools or daycare centers are closed. Also, a procedure for sending sick employees home should be established to ensure that employees are being treated equally and that the ADA is not being violated as a result, as discussed in greater detail below.

Third, employees must be informed about any new or revised policies, and relevant policies should be reviewed with employees. One example of a policy that should be reviewed is the FMLA policy. Swine flu in many instances will qualify as a “serious health condition” covered by the FMLA, and it is important that employees understand what they must do to request FMLA leave. Another policy that should be reviewed is the discrimination/harassment policy. Employees should not be targeted because they are from countries where swine flu originated or where large outbreaks have occurred. Similarly, employees should not be targeted because they are perceived as being susceptible to the H1N1 virus. One example is a situation where employees do not want to work with an HIV-positive employee because he/she is perceived as more susceptible to the swine flu, not because he/she has actually exhibited symptoms of the flu.

2. Precautions in the Workplace.

Employers have a duty of care to their employees under various federal and state laws. One such law, the Occupational Safety & Health Act (OSHA), requires employers to maintain a safe and healthful workplace and safeguard against recognized hazards. Employers may take a number of measures to minimize the risk of transmission of swine flu in the workplace. First and foremost, employers should ask employees to stay at home if they are ill. The Centers for Disease Control and Prevention (CDC) recommends that an employee with influenza-like illness stay at home until at least 24 hours after he/she no longer has fever (meaning that his/her temperature is below 100 degrees Fahrenheit) or signs of fever, such as chills, sweating, or a flushed appearance. The fever should be gone without the use of fever reducing medications.

If an employee becomes ill while at work, he/she should go home as soon as possible. If the employee cannot go home immediately, it is advisable that the employee should be separated from employees who are not ill. If an employee shows signs of swine flu but does not want to go home, an employer may ask that employee to submit to a medical examination. In doing so, the employer must be mindful of the ADA. To justify asking an employee to undergo a medical examination, the employer must establish that an employee, who is showing symptoms of swine flu, creates a direct threat of harm to other employees, customers, and clients, or that the employee is unable to perform his/her normal job duties and meet the essential functions of the job. Given the pandemic status of swine flu, it is likely that employers will be able to show a direct threat, but the employers must be reasonable. One sniffle or sneeze does not necessarily give employers the right to demand medical testing.

For those employees who are still in the workplace, employers may limit contact among their employees by reducing the number of large in-person meetings and utilizing technologies such as teleconferencing or video conferencing instead. If a face-to-face group meeting is unavoidable, the meeting room should be well-ventilated. When possible, employers may wish to allow employees to telecommute. When it is necessary for employees to be present in the workplace, flexible work schedules may be an option to reduce the number of workers who must be present in the workplace at the same time or in the same facility.

 
Employers should also encourage proper sanitation and hygiene habits. Employees should be instructed to their wash hands often with soap or, if soap is not available, an alcohol-based cleaner that is at least 60% alcohol. Employees should cough or sneeze into tissues, or if no tissues are available, into their upper sleeves. Employers should provide tissues, no-touch waste receptacles, soap, hand sanitizer, and cleaning supplies. Some employers have stockpiled or otherwise arranged for anti-viral influenza drugs to be available for their employees. Posters regarding cough and sneeze “etiquette” and hand washing are available on the CDC’s Web site at http://www.cdc.gov/. Any commonly touched surfaces such as doorknobs, telephones, and countertops should be cleaned and sanitized often, as the virus can live on hard objects for up to 8 hours.

Finally, employers can encourage employees to get vaccinated for both the seasonal flu and swine flu or to consult with their own doctors about getting vaccinated. Employers may consider offering vaccinations at the workplace or allowing employees take off from work without consequences to go get vaccinated. For employers who offer health benefits to their employees, they may want to talk to their insurance companies about covering the cost of vaccination against influenza.

 

3. Contingency Plans for Continued Business Operations.

Employers must know in advance how they are going to continue business operations in the event of absences and interrupted supply chains. Employers should identify essential business functions, essential jobs or roles, and critical elements within their supply chains (raw materials, suppliers, subcontractor services/products, and logistics). Employees should be cross-trained so that essential jobs are covered when the persons who hold those positions are absent. Employers may want to establish relationships with contract or temporary employment agencies and alternate suppliers if they have not already done so. Employers should be prepared not only to temporarily suspend some operations if necessary but also to handle any increased demand for their services that may arise. Consumers and customers may want to shop or utilize an employer’s services at off-peak times that decrease interaction with the public, or they may be interested in home delivery services, drive-through services, or other similar options. Employers may wish to plan ahead for offering these types of services.

Another issue that comes up with regard to continued operations is employee travel. Employers whose employees travel frequently may need to assess which business trips are essential and consider canceling non-essential business travel, depending on the severity of the worldwide outbreak. As with in-office meetings, teleconferencing or video conferencing may be suitable alternatives. If international travel is necessary, it is important to ensure that employees’ health insurance will cover them in other countries.

 

4. Conclusion.

This article is just a brief overview of some of the actions employers may take in response to the swine flu pandemic. Different employers will have different needs depending on their organizations. Healthcare employees working with infected patients are at a much higher risk of contracting the H1N1 virus in the workplace than office employees who have little interaction with the public or their co-workers. As the disease spreads, governmental and health guidance is evolving and changing. Employers should maintain awareness of the disease through Web sites such as www.cdc.gov/h1n1flu, http://www.flu.gov/ and http://www.osha.gov/, and through their local and state health departments. If you need assistance with policies and procedures, issues arising from the FMLA, the ADA, or OSHA, or other legal situations arising from the H1N1 pandemic, please contact our firm for assistance.

 

 

 

In a decision earlier this year, the Eighth Circuit Court of Appeals held that mere access to certain non-payroll records does not provide an employer with constructive knowledge of overtime worked. Constructive knowledge is not present, even if the non-payroll records indicate that employees may have worked overtime. In Hertz v. Woodbury County, 566 F.3d 775 (May 28, 2009), several police officers and other unnamed Plaintiffs, currently or formerly employed by the Woodbury County Sherriff’s Department, filed suit against Woodbury County for its alleged failure to pay overtime compensation in violation of the Fair Labor Standards Act (“FLSA”).

 

To aid in reducing police response time, Woodbury County used a code system, (“CAD”), to monitor each officer’s duty status. CAD kept track of when an officer was on or off duty so the dispatcher would know if the officer was immediately available to respond to an emergency call. CAD was not used for payroll purposes or to determine whether an officer worked overtime. Rather, the County recorded the working hours of each employee through the use of a sign-in sheet. Additionally, the payroll office used overtime slips and vacation logs to compute each officer’s time worked. Officer who worked overtime were asked to submit an overtime slip to the supervisors indicating the amount of time worked in excess of their scheduled hours. Supervisors were then responsible for approving the overtime. The slip, with the proper signatures, was forwarded to the payroll office. The officer was then paid at the rate of one and a half times the rate of pay.

 

The Plaintiffs claimed that the County failed to compensate them for work performed during their commute time, during mealtimes, and for general overtime. The jury returned a verdict in favor of the County on all claims. The Plaintiffs appealed, claiming that the jury should have been instructed that the County had a legal duty to consult the CAD records to determine if the officers had worked overtime.

 

The FLSA requires Plaintiffs to present evidence that they worked in excess of their scheduled hours without compensation and that the employer knew or should have known, either by actual or constructive knowledge, that overtime hours had been worked. The officers in this case argued that the CAD records provided evidence that the County had constructive knowledge of overtime hours worked. The Eighth Circuit held that the standard for constructive knowledge under the FLSA is whether the County “should have known” its officers were working overtime, not whether the County “could have known” its officers were working overtime. As such, the County’s access to the CAD records was found insufficient to establish constructive knowledge.

 

The Court stated, “[i]t would be unreasonable to require that the County weed through non-payroll CAD records to determine whether or not its employees were working beyond their scheduled hours. The burden with requiring the County to reference the CAD logs for the forty-some employees working in the Sherriff’s Department each day would be severe. To require such a task, would be beyond the reasonable diligence the law requires of employers when determining whether their employees are working overtime.” Therefore, the Court held that the County was not required to consult the CAD records for payroll purposes.

 

 

 

The United States Court of Appeals for the Second Circuit recently held that it was unlawful for a New York health clinic to fire five (5) off duty employees for picketing, even though the picketing was a violation of the National Labor Relations Act (“NLRA”). In its decision, the Court made a distinction between employees striking and picketing.

 

The American Federation of State, County and Municipal Employees (“Union”) represents correctional officers at the Albany County Correctional Facility in Albany, New York. The Union sought to represent and organize all employees, except physicians, supervisors and one clerical worker, at a health clinic operated by Correctional Medical Services, Inc. (“CMS”) in Albany. CMS refused the Union’s request to recognize it as the collective-bargaining representative of the employees. The Union responded by organizing a peaceful demonstration without giving CMS the ten (10) days notice required by Section 8(g) of the NLRA.

 

On September 12, 2002, twenty (20) individuals walked in a circle in front of the facility’s main entrance for less than an hour demonstrating and picketing for recognition of the Union by CMS as their collective bargaining agent. Five (5) of the demonstrators were off-duty employees who were not members of the Union. The next day, CMS informed the five (5) employees that the Union picketing without advance notice was illegal and, therefore, not protected under the NLRA. CMS filed charges against the Union with the National Labor Relations Board (“Board”) alleging a picketing violation. The Board issued a complaint against the Union, which was later settled.

 

Subsequently, CMS fired the five (5) employees for engaging in an illegal picket. One month later, CMS reinstated the employees without back pay. In October 2002, the Union filed charges with the Board alleging violations by CMS for terminating the employees. In May 2007, the Board held that CMS did not violate Section 8(g) of the NLRA. The Board reasoned that because the Union violated the Act by failing to give notice, the employees who were engaged in picketing were not protected by the NLRA; therefore, CMS did not violate the Act by terminating the employees.

 

The Union appealed to the Second Circuit Court of Appeals which reversed the Board’s decision finding that the Board had improperly construed Section 8 of the Act. The Court focused on the language of Section 8(d) which states that an employee who engages in any “strike” at a health care facility without the required notice is no longer an employee, therefore, losing any protection of the NLRA. While Labor organizations are subject to sanctions for either striking or picketing, the Court found that 8(d) does not include a comparable provision for employees who picket without notice.

 

The Court pointed out that the instant case involved peaceful picketing by off-duty employees, noting that, in other situations, health care facilities confronted with strikes or union-inspired disruptive behavior have potent remedies available. Based upon the language of the NLRA, the Court concluded that employees picketing without the required notice would not lose their protection under the NLRA and, therefore, CMS violated the NLRA by terminating them.

 

 

On August 27, 2009, a federal district court in Maryland upheld the legality of FAR Case 2007-013, the new federal rule that requires many federal contractors to use the Employment Eligibility Verification (E-Verify) system (formerly known as the Basic Pilot Program) to verify their employees’ eligibility to legally work in the U.S. The new rule was ordered to become effective on September 8, 2009. On September 1, 2009, an appeal was filed with the U.S. Court of Appeals for the Fourth Circuit, seeking to overturn the decision of the Maryland court and to enjoin the government from enforcing the new rule pending the outcome of the appeal. The Court denied the request for an injunction on September 4, 2009. Although the appeal to overturn the decision of the Maryland court is still pending, until a federal court overturns the decision, federal contractors must comply with the new E-Verify rule, the effective date of which was September 8, 2009.

 

Employers should also take note that 10 states, including Arizona, Colorado, Georgia, Idaho, Mississippi, Missouri, Oklahoma, Rhode Island, South Carolina, and Utah, now require some use of E-Verify for in-state employers and/or state contractors. Additionally, Tennessee has not mandated, but has recommended E-Verify as a method to comply with state laws against hiring undocumented workers. Arizona’s E-Verify law, which is the most comprehensive in the nation, was challenged on July 28, 2009, in the U.S. Supreme Court under the theory that the Arizona law is preempted by federal immigration law. The Supreme Court, however, has not yet taken up the suit.

Requirements of the New Rule.

 

The new rule requires insertion of a new clause, titled, “Employment Eligibility Verification,” in government contracts with a period of performance longer than 120 days and a value above $100,000. The clause explains the that all federal contractors and subcontractors, regardless of size, are required to use the E-Verify program to verify that all employees (existing and new) directly performing work on a covered contract, and that all newly hired employees, regardless of whether they will be performing work on a covered contract, are authorized to work in the U.S. The new clause applies to all solicitations issued and contracts awarded after the September 8, 2009 effective date, excluding the following:

The new rule also requires prime contractors to flow down the E-Verify eligibility requirements to subcontractors for all subcontracts for commercial or noncommercial services, including construction, valued at more than $3,000 and to be performed in the U.S.

New participants in the E-Verify program.

Contractors and subcontractors that have not previously participated in the E-Verify program must:

Contractors already enrolled in the E-Verify program.

Contractors already enrolled in E-Verify as a federal contractor at the time of contract award will have the same extended timeframe to initiate verification of employees assigned to the contract, but the time limits will be measured from contract award date instead of the contractor’s E-Verify enrollment date. Such contractors must:

 

(a) initiate verification of all existing employees assigned to the federal contract within either:

(b) initiate verification for each newly hired employee within 3 business days after hire date.

 

More information regarding the employment eligibility requirements can be found at www.dhs.gov/E-Verify. Employers that have questions about the new E-Verify rule should contact our firm.

NEWS AROUND THE FIRM

 
CGWG is proud to announce Kristen Hopkins Albertson has joined the firm's Northwest Arkansas offices. Ms. Albertson joins CGWG after previously serving as senior in-house labor and employment counsel for a large corporation. Her experience includes managing the defense of employment litigation in federal and state courts throughout the country, including Fair Labor Standards Act collective actions, Title VII and Section 1981 discrimination and harassment cases, OFCCP, EEOC, and DOL enforcement actions, and unfair labor practices proceedings, as well as advising on myriad labor and employment policies and practices. As a Director with CGWG, Ms. Albertson will continue to represent employers in labor and employment litigation and to counsel clients on labor and employment practices. Ms. Albertson was admitted to the Illinois Bar in 2000 and the Arkansas Bar in 2002 after receiving her J.D. from DePaul University in 2000 and obtaining her B.A. from Hendrix College in 1996. She served as Assistant Attorney General for the State of Illinois from 2000 to 2002.  Ms. Albertson can be reached at 479-443-6978 or kalbertson@cgwg.com.

Bruce Cross presented at the North Central SHRM Chapter monthly meeting in Searcy on August 26 on recent, pending and expected legislation.  He also delivered a speech for the West Central SHRM Chapter monthly meeting September 29 on Affirmative Action Plans: basic requirements, implementation, and compliance review processes.  Mr. Cross will also be speaking at the Conway Chamber of Commerce Business Expo on October 7 on legislative updates. 

Carolyn Witherspoon spoke at the Little Rock Engineer’s Club on Monday, September 14 on employment issues. She spoke at the Canadian Transportation Lawyers Association annual conference on October 1 – 3, 2009. Her topic was Work Place Wheel of Fortune: Rights of Employees v. Obligations of Employers in the 21st Century.

 

Allen Dobson delivered a speech at the West Central SHRM Manager's Seminar in Hot Springs on August 20.  His topic was called "Managing a Workforce in a Facebook World."

Rick Roderick made a presentation for Arkansas State University, Workforce Training Program, in Searcy on August 9. His topics were the Americans with Disabilities Act, Workers’ Compensation, and the Family and Medical Leave Act. He spoke on September 9 in Batesville at a firm supervisor training seminar on Harassment Prevention and Discipline and Termination and Documentation.

Kristen Albertson and Elizabeth Cummings spoke at a Sterling Education Services Seminar in Fayetteville on September 16, 2009. Kristen’s topic was the Family and Medical Leave Act and Elizabeth’s topic was the Lilly Ledbetter Fair Pay Act and Workplace Harassment.

 

Jess Sweere delivered a speech titled "Hot Legal Challenges" at the Annual Arkansas Public Employers Human Resources Association Conference in Hot Springs on October 1. 

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