Both employers and employees are seriously concerned about the outbreak of H1N1 influenza in the U.S. and internationally. According to the Centers for Disease Control and Prevention (“CDC”), there were 226 confirmed cases of swine flu in the U.S. as of 11 a.m. ET, May 3, 2009. The World Health Organization (“WHO”) raised the worldwide pandemic alert level to Phase 5 on April 29, 2009. A Phase 5 alert is a “strong signal that a pandemic is eminent and that the time to finalize the organization, communication, and implementation of the plan mitigation measures is short.” There has been one reported death in the U.S so far. By comparison, the seasonal flu took the lives of 83 children and 36,000 adults last year, according to the CDC.

What can and should employers do? Employers should become and stay informed about the H1N1 influenza A virus and best practices for preventing the spread of contagious diseases. H1N1 influenza is a respiratory disease of pigs caused by type A influenza virus. H1N1 influenza A is a virus that can be transmitted from animals to human and between humans. According to the CDC, the symptoms are similar to other influenza: fever, cough, headaches, body aches, sore throats, chills and fatigue. Some people have reported diarrhea and vomiting. Extensive information about H1N1 influenza is available at the various websites, including:

Because H1N1 influenza, like other seasonal influenza, can be transmitted from person to person, employers should remind employees to practice good personal hygiene such as covering their nose and mouth with a tissue when coughing and sneezing and disposing of the tissue after use; washing hands with soap and water frequently and staying home from work if the employee feels sick. Employees who develop symptoms of the H1N1 influenza virus should be encouraged to see their health care providers or to go to the emergency room in the case of severe symptoms. Companies can also provide alcohol-based hand sanitizers for employees’ use at work.

Should employees engage in business travel? The CDC has not recommended that people avoid traveling. In fact, the WHO is not recommending travel restrictions on the basis that limiting travel and imposing travel restrictions would have very little effect on stopping the virus spreading and would be highly disruptive to the global community. Nevertheless, employers may want to reconsider the necessity of business travel to areas which have experienced an outbreak of H1N1 influenza. An employee who is not feeling well or who may be more susceptible to respiratory illness should probably not be required to travel by common carrier where there is greater exposure to viral infection. However, employers should not overreact, such as by prohibiting employees from engaging in personal travel or requiring employees who return from trips to be quarantined at home for 10 days, unless there are circumstances to support the necessity of taking such actions.

What if an employee catches H1N1 influenza? The employer’s obligations to an employee infected with H1N1 influenza virus are really no different than in the case of any other employee illness. Depending upon the company’s policies, the employee may be entitled to paid time off. If the employer is subject to the Family and Medical Leave Act or a state leave law, the employee may be entitled to unpaid time off depending on the severity of the employee’s illness.

The employer must keep information regarding the employee’s medical condition confidential and the employer is limited by the American with Disabilities Act (“ADA”) in terms of the information that it can obtain from an employee’s health care providers without the employee’s consent. The ADA prohibits physical examinations and medical inquiries that are not job-related and consistent with business necessity.  

To be prepared to handle employee inquiries, employers should review their time off plans, insurance benefits, contingency plans for employee absences and cross training of employees. Being well informed and prepared for medical emergencies will benefit employee health and reduce potential employer liability.