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By Katie Culliton, Editor, CalChamber
California’s flu season is in full swing, with the U.S. Centers for Disease Control and Prevention (CDC) reporting statewide flu activity at very high levels and positive flu lab results up 25 percent. Many respiratory viruses beyond influenza are considered part of flu season, including respiratory syncytial virus (RSV) and COVID-19. Overall respiratory illness activity is currently high in the United States; these respiratory viruses are not only easily spread through the air by coughing or sneezing, but also by touching contaminated items.
Millions of people get sick with the flu each year, so flu season can take a massive toll on the workplace both in terms of employee health and welfare and a company’s bottom line. For instance, following the onset of flu symptoms, a full-time employee can expect to lose, on average, 3.5 of their five work days in a given week due to absenteeism and presenteeism, according to one study. Presenteeism refers to an employee who is at work but not functioning at full capacity due to illness, injury or another factor. Most people who get the flu will recover in a few days to two weeks, but some develop complications that can keep them out of the workplace even longer.
So, what can employers do when their employees get sick? Employees must be given time to get well, but employers should also encourage sick workers to stay home to avoid spreading a virus throughout the workplace.
The flu can cause mild to severe illness with symptoms — like fever, cough, sore throat, headaches, fatigue and/or a runny nose — that usually come on suddenly. Following the onset of flu symptoms, individuals should avoid close contact with others.
The U.S. Occupational Safety and Health Administration (OSHA) recommends encouraging sick workers to stay home. Employees with a fever and respiratory symptoms should stay home until 24 hours after their fever ends, without the use of medication. OSHA also recommends promoting hand hygiene and cough etiquette, such as washing your hands after blowing your nose, coughing or sneezing as well as covering coughs and sneezes with a tissue or your upper sleeve.
Additionally, frequently touched workplace objects and surfaces — like doorknobs, keyboards, elevator buttons and phones — should be routinely cleaned to help remove harmful bacteria and viruses. The CDC recommends keeping an adequate supply of tissues, soap, paper towels, disposable wipes and alcohol-based hand sanitizers.
Finally, cross-training employees should be considered so that another employee is available to cover for a sick worker or a worker who needs time off to care for a sick family member.
California employers must provide all employees working in the state up to 40 hours or five days of paid sick leave (PSL) — whichever is greater — to use when they’re sick or need to take care of defined family members, such as children, parents, parents-in-law, spouses, registered domestic partners, grandparents, grandchildren, siblings and a designated person. An employee's designated person can essentially be anyone, but an employer may limit an employee to one “designated person” per 12-month period for PSL.
California’s PSL law prohibits employers from denying employees the right to use accrued paid sick days and from taking any action against an employee for using, or attempting to use, accrued sick days. For instance, an employer cannot require an employee to find a replacement worker before taking paid sick time nor can they require medical certification — like a doctor’s note — unless it is required for another leave law.
Additionally, statements or jokes that could be seen as critical of employees who use their PSL — no matter how seemingly mild — could be considered a type of interference with the paid sick leave right and a violation of the law.
In general, when an employee has accrued protected paid sick leave available, employers shouldn’t discipline an employee for taking a paid sick day or using paid sick leave for part of a day. Attendance policies, where employees are disciplined based on a specific number of absences, should not include time taken off as PSL when the employee has accrued and available sick leave.
In addition to mandatory PSL, the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) provide covered employees with up to 12 workweeks of protected, unpaid leave during a 12-month period for their own “serious health condition” or that of a covered family member.
Although the flu, RSV or another respiratory virus wouldn’t typically be considered a serious health condition, an employee may be covered under the CFRA and the FMLA if their illness or physical condition involves inpatient care (hospitalization) or continuing treatment by a health care provider. Medical documentation is needed to substantiate a serious health condition, which employers can obtain by providing the Certification of Health Care Provider — Employee’s or Family Member’s Serious Health Condition form to employees.
According to the CDC, getting a flu vaccination every year is the most important action to reduce your risk of flu and its potentially serious outcomes. The CDC recommends that businesses consider offering free, onsite flu vaccination clinics to encourage employees to get vaccinated.
However, while employers can encourage and promote a seasonal flu shot, they cannot make it mandatory in most circumstances. Mandatory flu shot policies most likely affect health care workers, but employees may have objections to the flu shot for medical or religious reasons, and employers must accommodate any such exemptions.
Employers considering a specific vaccine mandate should work with legal counsel to create, implement and enforce policies that comply with state and federal laws.
Employers can take several steps to prepare for and handle flu season: