With flu season upon us, employers are dealing with employee sickness and lost productivity. In addition to those issues, employers must also be ready to handle legal and policy questions about the flu at work. Here are the top seven questions employers are asking about the flu.

1. Can I require my employees to get flu shots?

Yes, employers can require employees to get flu shots, but it is not recommended. Many employers, especially those in the health care sector, make flu shots mandatory for employees because of the danger of transmitting the flu virus to patients.

But before employers think about implementing a mandatory program, they should consider disability and religious accommodation issues under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act in the United States. Canadian employers should consider whether these issues might arise under the Canadian Human Rights Act. Some states, municipalities and provinces may also have laws covering these issues.

If employers are set on mandating flu shots, they need to make sure their policy allows for exceptions. Some employees may have a medical condition or religious beliefs prohibiting vaccinations. Employers must provide a reasonable accommodation for employees who do not want to be vaccinated, barring an undue hardship to the employer.

2. What other precautions can I take if I do not force my employees to get flu shots?

• Education. Educate employees about the safety of vaccinations and why it might be wise to get vaccinated.
• Flu Shot Programs. Offer a program with free or discounted flu shots. The International Foundation Workplace Wellness and Financial Education Programs: 2022 Survey Results report finds:
  • Among U.S. employers overall, 78.3% have a flu shot program (free or discounted flu shots). Of those, 24.5% offer incentives.
  • Among Canadian employers overall, 36.2% offer flu shots. Of those, 0% offer incentives. Note: Due to the small number of Canadian respondents, please use caution when generalizing findings to a particular population.
• Sick Days. Encourage employees to stay home when sick and offer paid sick days to stop the spread of the flu in the workplace. The Centers for Disease Control (CDC) recommends that employees who have a fever and respiratory symptoms stay at home until 24 hours after their fever ends without the use of medication. Employees should also stay home if they have a runny nose, body aches, headache, diarrhea or vomiting. Have upper management lead by example, sending the message to employees that they care and that work can wait until the employees are feeling well again.
• Paid Time Off. To minimize lost productivity during flu season, consider implementing absence policies that encourage sick employees to stay home, including paid time off (PTO) for short-term illnesses. Employees tend to be more willing to stay home under a separate sick/vacation policy (because use of sick time does not decrease their available vacation time) compared to a PTO bank.
• Promote Hand Washing and Cough Etiquette. Encourage employees to wash their hands properly using soap and water for at least 20 seconds before and after work; before and after breaks; after blowing their nose, coughing or sneezing; after using the restroom; and before eating or preparing food. CDC also advises employees to cover their mouths and noses with a tissue when they cough or sneeze.
• Keep the Workplace Clean. Promote the use of disinfectant wipes, hand sanitizers, automatic soap and paper towel dispensers, and other cleaning supplies.

3. Can I tell employees to stay home if they display flu-like symptoms?

Yes. Employers generally have the ability to keep their workplaces safe and healthy by sending sick and/or contagious employees home or asking them not to come to work in the first place. Under the Occupational Safety and Health Act (OSHA) in the U.S. and the various federal, provincial and territorial Occupational Health and Safety Acts (OHSA) in Canada, employers can tell a visibly ill employee to return home. If it is not obvious that the employee is sick, employers are also allowed to ask the employee whether they have flu symptoms since it is not a disability-related inquiry.

Employers can encourage employees to work remotely during any contagious period in order to qualify as a “reasonable accommodation” for a disability under the ADA and the Human Rights Act, but employers should avoid running afoul of those laws when taking any action beyond encouragement.

4. Can an employee use job-protected leave for the flu?

In some situations in the U.S., flu-like illnesses may qualify as a “serious health condition” under the Family and Medical Leave Act (FMLA), but the majority of flu-related absences will fall under state and local leave laws or employer absence policies.

In Canada, each province may have different protection laws. In Ontario, the Employment Standards Act provides leave for sick employees and their families. An employer can require employees to provide medical evidence to take leave.

5. How do time off and compensation work when dealing with a sick employee in the U.S.?

Compensation is not required absent applicable laws mandating paid sick leave. If an employee is not covered under a state/local paid sick leave law and is considered nonexempt under the U.S. Fair Labor Standards Act (FLSA), they would not need to be compensated for missing work. An employer could suggest or require the use of time off from a PTO bank to cover the missed time.

If the employee is exempt under the FLSA, employers can require the use of PTO for the missed time and deduct that time from a PTO bank. However, employers are generally not permitted to deduct wages from an exempt employee’s salary for absences due to sickness or disability.

What if an exempt employee’s leave has been exhausted already or a new hire does not have PTO available yet? Deductions that are made in accordance with a bona fide plan of providing compensation for loss of salary when sick or disabled are permissible.

6. What if an employee’s family members are sick or contagious for a period of time?

Whether an employee can miss work or work remotely in this situation depends on the employer’s policies. Some policies allow employees to use their own sick leave to care for a sick child. Employers offering flexible leave policies and alternate work schedules can help prevent the spread of the flu at work while allowing employees to continue to work and manage their families’ needs.

7. What should I include in an infectious disease policy?

Follow CDC guidelines. Require sick employees to stay home for at least 24 hours after symptoms start to improve, and until their fever (temperature exceeding 100 degrees Fahrenheit or 37.8 degrees Celsius) has subsided without the aid of medication.

Not all employees who have the flu will have a fever. Other symptoms may include a runny nose, body aches, headache, tiredness, diarrhea or vomiting. Those employees should stay home for at least five days after the onset of symptoms. If someone experiences these symptoms at work, send them home.

Include details on caring for sick family members, flexible work policies, employee leave and compensation.

It is important that all workplace policies are consistently enforced for all employees.

A Final Reminder

Start communicating now. Emphasize that you care about preventing the spread of flu in your workplace. Make sure employees understand any policies that apply to a flu-related absence, including workplace and leave flexibilities, as well as pay and benefits that will be available to them when they are sick with the flu.

Learn More About the Flu at Work

You can find helpful information about the flu here:

• Flu (influenza): Symptoms and treatment, Government of Canada
• Flu (influenza): FluWatch surveillance, Government of Canada
• Flu Resources for Business, Centers for Disease Control and Prevention
• Influenza (Flu), Centers for Disease Control and Prevention
• Seasonal Flu, Occupational Safety and Health Administration

Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.