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May 5, 2009

THE SWINE FLU:  WHAT EVERY EMPLOYER NEEDS TO KNOW

As of May 6, 2009, the Centers for Disease Control and Prevention (CDC) is reporting 642 confirmed cases of H1N1 Flu also known as Swine Flu across 41 States, five of which are from Ohio.  There have been two deaths thus far in the United States.  According to the CDC, the ongoing outbreak of Swine Flu continues to expand in the U.S. and internationally, and more cases, more hospitalizations, and more deaths from this outbreak are expected over the coming days and weeks.

While this U.S. declared health emergency is certainly a topic of concern for the general public, employers may be surprised to learn that a Swine Flu pandemic may give rise to special issues in the workplace, and even added liability exposure.  While larger companies may already have in place influenza pandemic teams and response plans, it is probably safe to say that the vast majority of employers do not have their pandemic teams suited up and ready to take the field. 

The good news is, through immediate planning and education, all employers can minimize the business impact of a Swine Flu outbreak should one arise in their areas.  The following guidance should help employers achieve this goal:

  • Communicate.  Fear and confusion can be limited or eliminated by ensuring that employees’ questions and concerns are addressed in a timely manner.  Should a Swine Flu outbreak occur in the area, be prepared to quickly disseminate information via mass email, Intranet, Internet, or a designated call-in line to apprise employees of changes to schedules, policies, procedures, response measures, and closings.  Appoint a member of management to head the communication and other response efforts and assemble a team to help, if needed.   
  • Train Managers.  Educate front line managers on communication protocols, reporting of sick employees who have self-identified, and what to do when a sick employee wishes to continue working, or a healthy employee is scared to come into work.
  • Reduce the Spread.  Be proactive to reduce the spread of the virus through increased cleaning and sanitizing efforts.  Consider laying out Kleenex and hand sanitizer all around the facility and wipes near shared phones and equipment, and strongly encourage constant use of these. 
  • Tell Sick Employees to Stay Home.  Decide ahead of time what reported or observed symptoms will trigger the need to send employees home.  This may be as little as a cold or allergies, or as much as a fever and/or vomiting.  Require a doctor’s release upon the employee’s return to work.  Consider advancing paid leave, or granting unpaid leave, to employees who are sick but are out of paid leave.  
  • Limit Face to Face Contact.  Employers may wish to consider allowing employees to work from home if possible.  Other changes in procedures, such as allowing employees to eat at their desks instead of in a break room and using technology to disseminate information that otherwise would have been shared in group meetings, may need to be made until the pandemic passes.      
  • Restrict Travel to High Risk Areas.  Consistently monitor the CDC and other reliable news websites to identify known infected areas.  Avoid allowing employee travel to these areas until further notice.       

While the Swine Flu presents health and safety issues for public at large, businesses should be concerned with special legal issues and liability exposure that a pandemic may create for employers.  The Occupational Safety & Health Administration (OSHA) has issued Guidance on Preparing Workplaces for an Influenza Pandemic, and the CDC has issued interim guidance on this issue which is being constantly updated as the situation evolves.  Employers should review these to ensure compliance. 

While a Swine Flu crisis may cause panic and the need to make decisions very quickly, employers should keep in mind that federal and state privacy, discrimination, and wage and hour laws still apply.  For example, asking health-related information may violate HIPAA or the ADA.  Likewise, employers should not target individual groups of employees, such as pregnant, older, or Mexian-American employees to stay at home absent self-reported or observed flu symptoms due to the perception that these employees are at a higher risk of exposure.  Also, employers should ensure that they are following state wage and hour laws when employees are working from home or are prevented from working due to temporary shut-downs. 

The keys to reducing the business impact of a potential Swine Flu pandemic are education, communication, and preparation.  In the coming weeks, employers should continue to closely monitor the CDC website and other reliable news outlets to keep apprised of the latest Swine Flu developments. 

For more information, or for answers to any questions you may have, please contact C. Mark Kingseed (kingseed@coollaw.com), Allison D. Michael (michael@coollaw.com), or Laura Wilson (wilson@coollaw.com) of the Labor and Employment Department of Coolidge Wall Co., L.P.A.

 

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