There is no federal law requiring employers to provide employees paid sick leave for employees absent because of a non-job-related illness such as the cold or flu, but most employers do provide it as important employee benefits. Catching a cold or the flu from a fellow employee is not a job-related illness covered under worker's compensation insurance. Unlike hazardous substances in the workplace that cause respiratory illnesses such as occupational asthma and silicosis, the common cold and seasonal flu are not considered occupational hazards covered under OSHA or worker's compensation rules.
The flu can keep an employee out of work for days or weeks. After the sick leave period is exhausted, an employee might need to go on short-term disability, an insured (or self-insured) program that pays a partial salary for a longer period than company-funded sick leave.
Is the flu covered under the Family and Medical Leave Act (FMLA)? The FMLA regulations state that ordinarily, "unless complications arise, the common cold and the flu are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." The U.S. Department of Labor ( DOL) has written opinion letters that attempt to clarify the law. "The regulations reflect the view that, ordinarily , conditions like the common cold and flu would not be expected to meet the regulatory tests, not that such conditions could not routinely qualify under FMLA where the tests are, in fact, met in particular cases." (DOL Opinion Letter No. 86). DOL's second opinion letter adds an example: "If an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g. , a visit to a health care provider followed by a regimen of care such as prescription drugs, the individual has a qualifying 'serious health condition' for purposes of FMLA." (DOL Opinion Letter No. 87).
Have a written policy. The organization's policy on sick leave should be in writing and thoroughly explained in the workplace orientation program, as well as in the employee handbook, policy manual, or individual employee contract. The more contingencies the policy covers, the less likely an employer will be caught short in the event of a sudden and unexpected circumstance. When adopting a policy, employers must be sure that it fully complies with federal or state family/medical leave laws, the ADA , and any other applicable statutory mandate.
Examples of policies. Some employers have adopted policies to help their employees better balance the productivity needs of the company with adequate recovery from a cold or flu:
- Some employers are replacing their vacation and sick time programs with what is known as a Paid Time Off (PTO) bank. PTO banks vary widely and tend to be personalized to the needs of the company. But in general, a PTO plan will “lump” all of an employee's accrued paid time off into one bank that the employee can use for a variety of purposes. If, for example, an employer's original policy provided for 5 sick, 5 personal, and 10 vacation days per year, a PTO plan might offer a bank of 20 days that the employee could use entirely as sick time, entirely as vacation or personal time, or in any combination.
- The more common policy is to separate sick days from vacation days in benefits packages: in general, people will strongly resist taking vacation days for illness and come in sick instead.
- Allow telecommuting for some office workers. Allow sick employees that have computer access to work at home.
- Management leads by example. Employees will usually follow the practice and attitude of managers in dealing with colds and flu.
Pandemic Flu Planning: Telecommuting Policies
Many employers are contemplating temporary telecommuting arrangements as part of emergency planning for pandemic flu when employees are unable, or refuse to, come to work. Add these arrangements to your pandemic emergency plan.
Eligibility during emergencies. If you have a telecommuting policy, you may want to expand eligibility to telecommute requirements during emergencies such as pandemic flu. Create a list of employees who could successfully perform their jobs, or elements of their jobs, through telecommuting.
Information technology (IT) issues. Discuss emergency telecommuting contingencies with your IT department. Determine which employees would need laptops or have home computers that would suffice. Discuss with your IT department if these employees need high-speed Internet access in order to access company files remotely and whether they would need special software installed to perform company-related tasks.
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