Labor & Employment Law

There’s nothing like sitting in your work cubicle, in the dead of winter and during the middle of a swine flu epidemic, while listening to your nearest coworker coughing her heart out. Sympathy can quickly turn to resentment as jumpy employees around her worry that every cough is sending battalions of pesky microbes marching off in their direction.

Unless sick employees stay home, those microbes could decimate a formerly healthy workforce — just as business is starting to pick up around the globe. Can employers make such employees stay away so that an injury to one doesn’t become an injury to all?

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Here are five areas to consider as we approach 2010.

Organized labor will continue to push for passage of the Employee Free Choice Act (EFCA). If enacted in a form that replaces the secret ballot vote with a card check, EFCA will substantially ease the ability for unions to organize workers. Though the current anticipated compromise on EFCA would not contain card check recognition, it is expected to contain elements such as quick certifications of elections, tougher penalties for employer violations and binding arbitration imposing a labor contract on parties who fail to reach an agreement through direct negotiations.

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In the last installment of our swine flu series, we explained why swine flu will frequently not qualify as a “serious health condition” under the Family and Medical Leave Act. And because swine flu is ordinarily a short-term condition, it’s also unlikely to qualify as a “disability” under state or federal disability law.

That means that swine flu will usually not be a “legally protected absence” under employer attendance policies — which in turn means that employees could accumulate attendance occurrences or points for absences related to swine flu. An employee accumulating enough of those points under a no-fault attendance system — which assigns a point regardless of the reason for an absence, unless it is a legally protected absence — is an employee looking at the prospect of discipline.

Disciplining an employee who is out because of the swine flu? The very idea strikes most employees and even many employers as preposterous.

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