Flu season is upon us, and this year the concerns are heightened due to the threat posed by the H1N1 influenza virus (also referred to as the swine flu). Presently, thirty seven states, including California and Washington, have reported widespread swine flu activity, and the Centers For Disease Control (CDC) is recommending that individuals take precautions to reduce the likelihood of virus transmission. In light of the possible impact of the swine flu (or other communicable disease) on businesses, employers should be prepared to address both the practical and legal concerns arising from an outbreak.

Employers have an obligation to maintain a safe workplace, which requires companies to take reasonable steps to provide for the safety of their employees. If faced with swine flu contagion, these steps may include both administrative controls (such as educating employees, encouraging employees to get vaccinated, promoting proper hygiene, relaxing or modifying leave, telework and scheduling policies, and minimizing face to face contact) and physical controls (such as disinfecting work areas, providing alcohol-based hand sanitizers, and ensuring adequate air circulation within the workplace).

Employers should also be prepared for the possibility that a significant portion of their workforce, or distribution or supply chains, could be affected by the virus. Having a thorough contingency plan in place (which may include cross-training employees in core business functions, teleworking, and staggering shifts) will be essential to minimize a disruption in business operations and ability to service customers.

Finally, employers must be aware of their legal rights and obligations, to address the myriad issues which may arise from the spread of swine flu. Issues regarding privacy rights (i.e., what employers can reasonably require of employees), reasonable accommodation (i.e., how to respond to employee requests), employee safety concerns (e.g., how employers handle employees who refuse to work due to fear of infection) are just some examples of how a flu outbreak could impact the workplace.

For more information about H1N1, including how to reduce the chances of H1N1 transmission, please see the CDC's H1N1 website: www.cdc.gov/H1N1FLU/. For more information on how to prepare your workplace for an influenza pandemic, see OSHA's guidance at: www.osha.gov/Publications/influenza_pandemic.html.

For guidance on how to address disability discrimination issues relating to the swine flu, please see the EEOC's guidance at: www.eeoc.gov/facts/pandemic_flu.html.