By: James B. Sherman, Esq.

I have spent the past 10 or so days doing some in-depth research here in Minnesota into the H1N1 virus (a/k/a "Swine Flu") issue. This endeavor was initiated not by choice but by an unwanted flu bug visitor that seemed to have followed my high school children home on the bus. Judging by the speed with which the H1N1 virus spread through my entire family of five, I certainly can see how it is predicted to be a major workplace issue this winter. As an employment lawyer and now an early "survivor" of the dreaded flu of 2009, I feel compelled to offer some sage advice.

First, the medical experts are not exaggerating - this particular flu bug spreads fast and easily, like wildfire. Therefore, those who fail to take appropriate action run the very real risk of seeing this flu ravage their workplace the same way it has affected some college football teams. Can you say "where did our offensive line go?"

Second, other than cases involving a serious health condition warranting FMLA coverage (certainly a possibility with H1N1) the question of whether to send infected employees home is largely discretionary. The important thing to remember is that sending people home, especially if it is being done without pay or while forcing employees to burn PTO time, may be viewed as and "adverse employment act" under discrimination laws. There is nothing wrong with it, per se, but treating different classes of employees differently in this regard could be unlawful. Therefore, it is important to set parameters for these decisions in advance of any flu outbreak and then follow the rules uniformly for all similarly situated employees. For example, if employees exhibiting the tell-tale symptom of dry coughing and fever are to be sent home, see that this is done on a consistent basis to avoid a discrimination complaint.

Obviously there are nuances for people employed in the food, health and other industries with special considerations. Also, before docking pay, employers must be mindful of preserving "salaried status" for exempt personnel, as well as access to existing employer provided benefits such as PTO. Similarly, some employers have added to such benefits on a one-time basis to encourage sick employees to stay home and not rush their return to work to earn a paycheck while exposing others to the flu. However, this might encourage more people to claim they have the flu than may actually have it. I prefer the employer calling the shots on who works rather than paying to encourage good choices. After all, it is the employer that is responsible under OSHA to provide employees with a safe work environment.

As for me, I was able to do some work from home and stay away from my office until the staff felt comfortable with my return. So far no one else has come down with the flu at my office and an additional plus is that I no longer need to worry about getting a (swine) flu shot.

Questions? Please contact WS Shareholder and Senior Attorney James B. Sherman in our Minneapolis, MN office at (952) 746-1700, or jasherman@wesselssherman.com.