Swine Flu: What Should Employers Do?

Date Published: 
May 12, 2009
Original Author: 
Michael S. Pepperman, Esq.
Original Publication: 
Obermayer Alert: News from the Labor and Employment Department
Swine Flu:  What Should Employers Do?
Swine influenza A (H1N1) is making headlines everywhere with over 100 confirmed cases in more than 10 states within the United States and many more globally. The jury is still out on whether the swine flu outbreak will become a widespread pandemic. However, it is not too soon for employers to start preparing to prevent flu spread at work and consider what to do if the illness reaches pandemic status. Properly implemented, pandemic planning can help limit the flu’s impact on employee health—and the economic health of your organization.
Pandemic Planning:
* Employers should consider revising attendance policies to encourage ill employees to remain home during a pandemic phase. Employers may also consider offering flexible work arrangements, including the use of telecommuting, flexible work hours and staggered shifts, to minimize employee and customer exposure to the flu and stop its spread in the workplace.
* Employers should educate their employees on how to prevent spreading the flu.  Communicating good hygiene and infection control practices will help keep your workforce healthy. Share materials that educate employees on the fundamentals of pandemic flu (such as symptoms of flu, modes of transmission). Remind employees to cover their mouths when they cough and their noses when they sneeze, throw out used tissues immediately and wash hands frequently, or use alcohol-based hand sanitizer.
* Employers can reduce the risk of workplace infection by providing air ventilation and purifying systems, restricting travel and increasing use of e-mail and teleconferencing to minimize personal contact. 
* Employers should distribute information about their pandemic planning to employees. Proactive communication will help gain employee trust and prevent employee fear, anxiety and misinformation. Also, employers should keep employees informed by suggesting they bookmark the website for the Centers for Disease Control and Prevention, which is available at www.pandemicflu.gov.  
Employment Law Issues:
Employers must balance their obligation to maintain a safe workplace with other legal obligations.  While you will want to make reasonable efforts to keep contagious workers home, disability laws may limit your right to ask employees about their medical conditions or require them to take medical exams. In addition, you must consider employees’ privacy rights and whether falsely accusing someone of having a pandemic flu could be defamatory.  Employers must also address their legal obligations to employees who must miss work for medical reasons. You may be legally obligated to provide leave and restore employees to their jobs when they return from leave.  Here are some frequently asked questions and answers regarding employers’ rights and obligations concerning the swine flu.  Please contact us for more advice on these important issues.
*  Can I require an employee who is out sick with the pandemic flu to provide a doctor’s note or submit to a medical exam before returning to work?
Yes, if you have a reasonable belief, based on objective evidence, that the employee’s present medical condition would: (1) impair his ability to perform the essential functions of the job with or without reasonable accommodations, or (2) pose a direct threat (i.e., a significant risk of substantial harm that cannot be reduced or eliminated by reasonable
accommodation) to safety in the workplace.  Where the employee’s leave is covered by the FMLA, you may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work.  However, you must notify employees in advance if you will require a fitness-for-duty certification to return to work.
* Can I send an employee home if they show symptoms of the pandemic flu?
You can prepare a policy that permits you to send employees home if they show symptoms of pandemic flu, so long as the policy and the employment decisions do not discriminate on the basis of a legally protected status, such as race, disability or age.  You should notify your employees about decisions made under this policy as soon as practicable.
Your policies on sick leave, and any applicable employment contracts or collective bargaining agreements, would determine whether you must provide paid leave to employees who are not at work.
* Can I require employees to stay home if they or their family members are known or suspected to have pandemic flu?
You may be able to mandate employees to stay home if they or members of their family are known or suspected to have pandemic flu or been exposed to someone with pandemic flu.  Specifically, if the pandemic flu rises to the level of a “disability” under the Americans with Disabilities (“ADA”), you would not violate the ADA to require a person to stay home if you reasonably believe that the person would pose a direct threat in the workplace due to the illness.  If the pandemic flu does not rise to the level of a disability, then a decision to require infected employees to stay home would not implicate the ADA.
* Can I change our sick leave policy from paid leave to leave without pay if a number of employees call out because of the pandemic flu?
Yes, so long as the change is done in a manner that does not discriminate against employees on the basis of a legally protected status.  However, if your workforce is represented by a labor union, the collective bargaining agreement may limit your ability to change the policy and/or the manner of the changes themselves.  Also, even where there is no collective bargaining agreement, your employees may have a contractual right to any accrued sick leave, but not future leave.  Of course, your sick leave policy must comply with the Family and Medical Leave Act and federal and state workplace anti-discrimination laws.
* How may I ask employees about factors, including chronic medical conditions, that may cause them to miss work in the event of a pandemic?
You may survey your workforce to gather personal information needed for pandemic preparation if you ask broad questions that are not limited to disability-related inquiries. An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity).  For example, you can ask your employees if, in the event of a pandemic, would they be unable to come to work because they would need to care for a child if schools or day-care centers were closed or because public transportation was sporadic or unavailable. 
* May an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of a pandemic virus?
Yes. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these absent undue hardship.
For more information, or if you have a question about this or another employment matter, please call or e-mail us.
Michael S. Pepperman, Esquire
1617 J.F.K. Boulevard, 19th Floor
Philadelphia, PA  19103
Phone:  (215) 665-3032
Cell: (215) 694-4592
Fax:  (215) 665-3165