Swine Flu Predicted to Have Significant Impact on Employers and Employees
August, 2009
It's back! Although it never really went away. After a brief hiatus, the swine flu (the H1N1 influenza virus) is pushing itself to the forefront again. We are seeing more cases diagnosed in the states we service. Predictions may vary about how widespread the disease will be, but on August 19, 2009, the Portland, Oregon newspaper The Oregonian reported predictions that as much as 40% of the State's population (1.5 million people) could be infected. The severity of the impact of the disease led members of President Obama's Cabinet to hold a press conference to discuss the swine flu on August 19, and the Centers for Disease Control and Prevention to issue Guidance to Businesses and Employers. It makes sense, therefore, to take a look at what this means for employers and how they should respond. Here's what employers need to know to avoid liability related to the spread of this disease.
The salient message from both the Cabinet members and the CDC was that businesses and employers should put a plan in place now to deal with the inevitable crush of sickness and absenteeism the disease is certain to bring. The following are the action steps recommended by the CDC:
- Sick persons should stay home.
- Sick employees should be asked to go home.
- Coughs and sneezes should be covered, either with a tissue or the upper sleeve.
- Hand hygiene should be improved through washing and use of hand cleaners. (Employers should consider supplying hand sanitizer and other sanitizing products to be liberally used.)
- Surfaces and items that are more likely to have frequent hand contact should be cleaned.
- Employers should encourage employees to get vaccinated.
- Employers should take measures to protect employees who are at higher risk for complications from the swine flu. High risk employees include older employees and employees with depressed immune responses.
- Prepare for increased absenteeism and plan ways for essential business functions to continue.
- Advise employees who are traveling to take precautionary steps.
- Prepare for the possibility of school dismissal or temporary closure of child care programs, specifically through increased flexibility in permitting employees to take time off from work.
- Consider active screening of employees who report to work, specifically asking employees about symptoms consistent with the influenza illness.
- Consider alternative work environments for employees at high risk during severe outbreak periods, such as permitting telecommuting, if feasible, and implementing means of increasing "social" or physical distance between workers in the workplace. (The "goal" is at least 6 feet of distance between workers.)
- Consider canceling non-essential business travel and meetings.
- The CDC recommends not requiring a doctor's note to validate illnesses because of the anticipated crush on health care providers.
The CDC Guidance can be found online at http://www.cdc.gov/h1n1flu/business/guidance/.
The EEOC has also issued guidelines related to the swine flu outbreak, including the following:
- An employer may require its employees to adopt infection control practices, such as regular hand washing and tissue usage and disposal.
- An employer may require its employees to wear personal protective equipment (face masks, gloves or gowns) to reduce the transmission of the virus.
- An employer may encourage or require employees to work at home or from an alternative location as an infection control strategy.
The EEOC guidance can be found online at http://www.eeoc.gov/facts/h1n1_flu.html.
We recommend that employers make their employees aware of their planning for the effects of the swine flu, and of what may be required of the employees in the workplace.
In an effort to assist you in dealing with this issue, we have set forth some frequently asked questions:
Question: Can an employer require an employee who is sick to stay at home?
Answer: Yes. However, watch those wage and hour issues. Staying home means no work (not even checking emails or returning phone calls). Of course, you should apply your normal sick leave policy.
Question: If an employer discovers that one of its employees has swine flu, what can the employer tell the rest of the workforce?
Answer: The Americans With Disabilities Act prohibits disclosure of confidential medical information. Therefore, every effort should be made to keep the identity of the infected employee confidential. It is appropriate to advise employees that an employee was diagnosed. It is appropriate to advise employees whom the employer believes may have had close contact with the infected person of that fact. The employer should not, however, reveal the identity of the infected person.
Question: How can an employer obtain more information?
Answer: The websites set forth above are good sources of information. In addition, each state's public health division is a good source of information. These include the California Department of Public Health, the Oregon Public Health Division and the Washington State Department of Health and the Nevada Department of Health and Human Services.
The threat of infection in the workplace can cause increased concern. However, prior planning can reduce the unknowns and reduce anxiety. Your Bullivant employment lawyers can answer your questions and assist you in putting together a preparedness plan.