How to Handle Employees with the Flu

Seasonal flu has once again appeared in the homes, schools, and workplaces of Minnesota.  The Star Tribune reports that Twin Cities hospitals are at or near capacity with flu patients and hospitals are cautioning healthy family and friends to stay away.

Such widespread illness can lead to other rather dramatic reactions.  For example, employers wishing to avoid contagious spread of the flu and related workplace absences might decide to terminate the employment of an employee exposed to or diagnosed with the flu.  Can an employer do so consistent with applicable law?

In a recent case, the Minnesota Federal District Court held that an employer did not violate the Americans with Disabilities Act (ADA) or the Minnesota Human Rights Act (MHRA) when discharging an employee thought to have been exposed to the flu.  See Valdez v. Minnesota Quarries, Inc., No. 12-CV-0801 (D. Minn. Dec. 10, 2012).   The employee had traveled to Mexico at the height of the swine flu (H1N1) pandemic.  He was discharged following his return to Minnesota allegedly because of his possible exposure to the flu.  The employee sued claiming that he had been improperly regarded as disabled.  The court, however, determined that the flu (even the swine flu) is transitory and minor and therefore cannot be the basis of a regarded as disabled claim.

What if an employee actually has the flu?  Would a discharge on that basis violate the ADA or MHRA?   The 2011 amended ADA regulations state that the transitory and minor exception does not apply to allegations of actual disability.  See 29 C.F.R. § 1630.2(j)(1)(ix) (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”)  Accordingly, while often not the case, it is possible that an employee diagnosed with the flu may be considered disabled under applicable law if they are substantially limited in a major life activity.  Further, an employee with the flu may be entitled to protected leave under the Family and Medical Leave Act (FMLA) if they are incapacitated for more than three consecutive days and have received treatment from a healthcare provider.

Takeaway:  Employers should be careful to properly address the employment status of any employee having the flu, including a determination as to whether the employee is protected under applicable disability discrimination or leave of absence laws.  While it may be prudent to have an employee with the flu stay home until they have recovered, employers should consult with legal counsel before making any discharge decision.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on January 11, 2013, in Accommodations and Accessibility, Discrimination and Harassment. Bookmark the permalink. Leave a comment.

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