Legal Issues Raised by Seasonal Illness
By Anne-Marie L. Storey, Esq.
Seasonal illnesses can result in possible legal exposure for Maine employers in several different ways, some of which are summarized below.
First, negative health effects from a flu shot could constitute a work-related injury under certain circumstances. When the employer requires an inoculation, a resulting injury is likely compensable. Compensability is less clear when the inoculation is voluntary. Generally, the Workers’ Compensation Board will consider several factors in determining whether an injury is work-related, including whether the activity 1) benefited the employer, 2) was within the terms, conditions or customs of the employment, 3) served both a business and personal purpose, 4) was employer or employee created, 5) was unreasonably reckless, and 6) occurred on the employer’s premises. In the case of a flu shot, the Board might look at whether the employer “strongly urged” the employee to have the shot or whether it was truly voluntary, whether the employer provided the shot at no or reduced cost, whether the employer benefitted from providing the shots in terms of, for instance, reduced absenteeism from illness or discounts on insurance rates, and whether the shot was made available to non-employees.
Second, a person suffering from the flu or effects of a flu shot could have a covered disability under the ADA/MHRA if the condition is severe enough to meet the definition of disability under those laws.
Third, an employee who has the flu or is ill as a result of a flu shot may be entitled to leave under various federal and/or state statutes. State and federal FMLA allow an employee to take unpaid leave time for the employee’s own serious health condition. Although the federal FMLA regulations state that “[o]rdinarily, unless complications arise, the common cold, the flu, . . . etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave”, this might be different if complications develop. Further, even if the employee’s flu may not amount to a serious health condition, an employee may be entitled to FMLA leave to care for a covered relative. Finally, Maine’s Family Sick Leave law (which is distinct from the state FMLA) may also apply; this law requires all employers of a certain size to allow paid leave to be taken “for the care of an immediate family member who is ill”. The term “ill” is not defined in the law but could possibly include an individual with the flu or other seasonal illness.
There are many other potential issues that might also result from seasonal illness. For instance, accommodation of religious beliefs could be an issue where an employer requires a flu shot but an employee objects to it on religious grounds. Wage and hour questions can also arise, for instance, whether deductions can be made from an exempt employee’s salary for time missed due to illness or how to monitor hours for an employee who works remotely while out of work due to illness. Questions are often raised in these situations about whether an employer can require an employee to leave work if he is sick and may expose others. Finally, employers should be aware of OSHA considerations, particularly in the event of another flu pandemic.