H1N1 Virus (Swine Flu): Q&A for Small Business Owners

With all the talk of H1N1 these days, many small business owners are wondering what they can do to keep their workplaces healthy. NFIB has given you information about how to prepare for H1N1, but what can you do – what are your obligations – if one of your employees gets sick? The NFIB Small Business Legal Center offers the following answers:

May an employer send home an employee who has H1N1, is symptomatic or has been in close contact with someone who has H1N1? 
Yes. Centers for Disease Control guidance recommends sending home an employee who has or is suspected of having H1N1 in order to control the spread of the virus. Decisions about whether or not to send home an employee must not be based on race, gender or any other protected characteristic.

May an employer inform other employees that a co-worker has been diagnosed with H1N1 or is suspected of having H1N1? 
Yes, subject to privacy protections required by law. The CDC recommends informing co-workers that they have been exposed to an individual who has, is likely to have or is suspected of having H1N1. But employers should not to identify or provide identifying information about the employee who may have exposed the co-workers. 

When may an employee return to work after having been diagnosed with H1N1 or exhibiting H1N1 symptoms? 
CDC guidance recommends accepting an employee back to work after he or she has gone at least 24 hours without having a fever or exhibiting signs of a fever, without the help of any fever-reducing medications.

May an employer require an employee with H1N1 to use vacation/PTO for any absence due to the illness? 
Yes, subject to the provisions of the employer's current vacation/PTO (paid time off) policies and any state laws that restrict interpretation or amendment of the policies.

May an employer dock an employee for absence due to H1N1 if the employee has exhausted vacation/PTO? 
Yes, as to non-exempt employees. For exempt employees: (A) if the exempt employee initiates the absence, the employer may dock the exempt employee for full-day absences; or (B) if the employer initiates the absence, the employer may dock the exempt employee for full seven-day absences that coincide with the employer's pay week.

Does an employer have any obligations under OSHA when an employee is diagnosed with H1N1? 
Under the Occupational Safety and Health Administration's recordkeeping regulation, an employer may be required to record a case of H1N1 on the OSHA 300 Log if contraction of the virus is "work-related" and results in absence from work, job transfer or medical treatment. An illness is considered work-related if a factor or exposure in the workplace more likely than not caused or contributed to the illness. (e.g. when an employee gets H1N1 after working closely with another employee who was diagnosed with it.)

NFIB members with additional questions can contact the NFIB Employment Law Hotline.