Wyatt Employment Law Report

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Congress Jumps Aboard the H1N1 Bandwagon

By George J. Miller

As if the flood of information and guidance from OSHA and the CDC were not enough to help employers and employees deal with the threat of H1N1 in the workplace, Congress has now gotten into the act.  On November 3rd, the Emergency Influenza Containment Act (H.R. 3991) was introduced in the U.S. House of Representatives.  This bill would guarantee a maximum of five paid sick days for employees who are sent home or directed to stay home by their employer because they have symptoms of a contagious illness, or have been in close contact with an individual who has symptoms of a contagious illness, such as the H1N1 flu virus.

As if this were not enough, a second bill, the Pandemic Protection for Workers, Families and Businesses Act (S.2790/H.R. 4092) was introduced on November 17th in the House and Senate.  This bill would give employees up to seven paid sick days to use for leave due to their own flu-like symptoms, or for medical diagnosis or preventative care, or to care for a sick child, or to care for a child whose school or child care facility has been closed due to the flu.

Both bills would take effect fifteen days after being signed into law but would automatically terminate after two years.  They would apply only to employers of fifteen or more employees.

If both bills are enacted into law, it is not clear whether there would be circumstances under which an employee could stack the leave entitlements under the two laws and take up to twelve paid days off.

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Emergency Influenza Containment Act Introduced

By Mitzi Wyrick

Emergency temporary legislation has been introduced in the House of Representatives that would require employers to provide up to five days of paid time off to workers who are sent home because they are sick.  Employers would not be required to pay employees who stay home voluntarily, but employers would be required to pay employees who are sent home.  As currently drafted, the Emergency Influenza Containment Act guarantees a sick worker up to five paid sick leave days a year if an employer ‘directs’ or ‘advises’ a sick employee to stay home or go home.  This law would cover the H1N1 flu virus as well as other infectious diseases and would be in effect for two years after passage.  The legislation covers both full-time and part-time workers (on a pro-rated basis) in businesses with 15 or more workers, but employers that already provide at least 5 days’ paid sick leave are exempt.  Employees who follow their employer’s direction to stay home because of contagious illness cannot be fired, disciplined or be subject to retaliation.  A committee hearing is expected to be held on this legislation during the week of November 16th.

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Mandatory Flu Vaccinations: Legal or Not?

By Debra Dawahare

The U.S. Center for Disease Control (“CDC”) reports that between August and October 2009,  there were nearly 5,000 flu-related hospitalizations nationwide, with 24% of such admissions affecting persons aged 25-49. The New York Department of Health has issued emergency regulations, effective as of August 2009, requiring healthcare workers to submit to mandatory flu vaccinations as a condition of continued employment, unless the workers have no patient contact or suffer from a serious health condition for which a flu vaccination is contraindicated. 

Is it legal for an employer to require employees to have vaccinations?  And even if it is legal, is it advisable?   An employer who adopts a mandatory vaccination policy risks:

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