Not Going Hog-Wild: How to protect the workplace against H1N1 (Swine Flu) prudently and legally
May, 2009
No doubt employees and employers are afraid of the Swine Flu. Whether these fears are rationally grounded is almost beside the point now; car accidents kill more than 130 people a day in the United States while Swine Flu has claimed 1 American to date. Managing employee fears and potential business disruption is what matters now. Few companies have set protocols and policies addressing potential epidemics. So now is the time to create your company's response plan and policies. But, while the need to set epidemic response and prevention policies is acute, any policy set must be legally compliant with such laws as the ADA, the Family Medical Leave Act, Workers' Compensation and OHSA regulations and their state law analogues.
Employers are obligated to provide a safe workplace. If an employee has good-faith concerns about workplace safety and stays home, OHSA may apply to prohibit any retaliation. Conversely, employers may be required to limit infection among their employees. As employers craft these types of policies, here are some key points to keep in mind:
Prevention through Communication. Remind employees of good hygiene practices. We have all heard this refrain before, but good hygiene consists of: covering mouths and noses when coughing; not touching eyes, noses and mouths; frequent hand-washing with soap and water for 20 seconds; or simply staying at home and resting if you are sick. The CDC recommends anyone who is sick stay home for 7 days or for at least 24 hours after symptoms subside. Response and prevention policies should be designed to minimize exposure to infection. A single infected employee staying at home may prevent scores of other employees and customers from becoming ill. During heightened situations like now, employers should communicate these polices and update guidance regularly. Also, they should avoid treating anyone who is infected as though they are disabled. This is good practice in ordinary times as well.
Policies may have Reporting Components. Out of business necessity and good business practice, employers may be able to require employees to report any contact with a diagnosed infected person or if they are symptomatic themselves. These reporting requirement policies should try to preserve confidentiality, but should also describe protocols if the employer chooses to report incidents to local health authorities. Also, Swine Flu has a reported seven day incubation period and has been more prevalent in certain locations. This may necessitate the need for an employee to report recent travel activity. These policies should be designed to prevent a workplace from posing a significant risk of substantial harm to the health and safety to employees and the public.
Caveats about Examinations. The ADA allows employers to require employees to get a medical exam only if the exam is job-related and consistent with a business necessity. Providing a safe workplace is a business necessity. But first, an employer must reasonably believe an employee's current ability to perform their essential job functions safely is impaired. Or, an employer must reasonably believe the employee currently poses a direct threat to the workplace's health and safety and reasonable accommodations are insufficient to eliminate that risk. This belief must be based on objective evidence and be an individualized assessment. Rumors, unsupported perceptions or general fears are an insufficient basis for a mandatory exam. Wholesale exams of employees, regardless if they are symptomatic or not, would likely violate the ADA.
Sick Leave. If an employee becomes sick, employers may be obligated to provide leave time and restore an employee's job when they return under state law or Federal laws such as FMLA. The Swine Flu may count as a "serious health condition" entitling an employee to take leave. Depending on the current sick leave policy in place, if an employee takes and returns from FMLA leave, an employer may require the employee to get a fitness-for-duty medical certification. If the would-be returning employee is not taking FMLA leave but objectively poses a health risk, the ADA examination procedures above may apply. Employers should be ready to adapt and extend time-off policies or voluntary leave policies to encourage infected employees to stay home.
Be Flexible. Preventing business disruption and keeping employees healthy are obvious goals anytime, flu season or not. But, during an epidemic, employers should be flexible. Attendance can drop off. Sick employees could report to work to keep earning wages. Employees may not be able to afford health care. Concentration and focus may wane. A host of possibilities like these may necessitate the need for telecommuting options, increased use of email and videoconferencing, cross-training of other employees to substitute for sick employees, and updated flexible work policies. Also, appointing a lead coordinator to oversee these issues and policies may be appropriate.
Regardless of its zoological origins, influenza response planning is equally applicable to seasonal flu and other infectious diseases such as Tuberculosis for example. This recent outbreak highlights the need for advance planning and preparation for epidemics and pandemics. Contact your local BHB attorney to ensure your personnel policies comply with the myriad of potentially applicable laws and regulations.
Posters and more preventive information are available at:
http://www.pandemicflu.gov/plan/workplaceplanning/index.html
http://www.cdc.gov/germstopper/work.htm
For more information about medical exam caveats, see:
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title29/29cfr1630_main_02.tpl
For fitness-for-duty certifications, see:
http://www.dol.gov/dol/allcfr/esa/Title_29/Part_825/29CFR825.312.htm