Creeping Crud Season is Here

ACHOO!: Employer Tips and Tricks for Getting Through Cold and Flu Season

by Rebecca Lee and Thomas Strong

at Venable LLP

With the onset of winter, employers are bracing themselves for the uptick in employee time off due to illness. Below are some reminders for employers to help them get through the next few months.

• Updates in the Law: With the upcoming start to the new year, new laws altering paid sick leave requirements take effect. For example, California now requires employers to provide 40 hours of paid sick leave per year, which can accrue up to a cap of 80 hours. Likewise, Illinois added a paid leave law, requiring most employers to provide at least 40 hours of paid leave to employees that can be used for any reason. Employers should review their policies, including accrual/cap/use requirements, to ensure their policies comply with new updates (and existing requirements) in the law, especially if they have employees working remotely in many different cities and states.
• Remote/Hybrid Work: Many employers have begun mandating that their employees working a hybrid schedule report to the office a minimum number of days each week. With increases in illnesses during the winter months, employers may wish to allow employees exhibiting signs of illness the option to work from home to maintain productivity (and dissuade employees who are ill from reporting to work). If flexibility to the in-office requirement is allowed because of temporary illnesses, employers should ensure that supervisors implement the modified in-office requirement uniformly.
• Entitlements to Unpaid Leave: After an employee has exhausted all of his or her paid time off, the employee may be entitled to additional unpaid leave if the illness qualifies as a serious medical condition under the Family Medical Leave Act (FMLA). While the common cold and flu are typically not serious enough to be a basis for leave under the FMLA, both can be if complications arise. Furthermore, state laws requiring unpaid leave for illness could be broader than the FMLA.
• Leave for the Illness of a Family Member: Employers should remember that employee entitlements to paid and unpaid leave under both federal and state laws frequently apply to the illnesses of employees' family members.
• Interactive Process: Employers should always consider whether an employee's request related to illness could qualify as a request for an accommodation for a disability under the Americans with Disabilities Act (ADA) or parallel state law. If so, employers might have a duty to engage in the interactive process, in order to provide the employee with a reasonable accommodation. Employers should exercise caution whenever they respond to an employee's request to work remotely when it relates to any medical condition. Generally, typical winter illnesses do not constitute disabilities under the ADA or similar state laws. However, it is possible that extended complications arising from COVID could constitute a disability under federal or state law.
• COVID-19 Requirements: While many states have let their COVID-19 workplace laws expire, employers should consider whether employees might still be subject to certain requirements. For example, most California employers are still required to follow the Cal-OSHA COVID-19 requirements, including notification, exclusion, training, and office requirements.
• Company Wellness Initiatives: The start of the calendar year is a popular time for employers to modify their wellness programs. Employers should be careful to ensure that such modifications do not run afoul of the ADA, the Health Insurance Portability and Accountability Act (HIPAA), or the Genetic Information Nondiscrimination Act (GINA). For example, the ADA requires that certain wellness programs be voluntary and reasonably designed to promote health or prevent disease.