Regardless of whether you call it the “swine flu” or the “H1N1 flu,” you must ensure your workplace is prepared to handle its economic and health consequences. The much-feared H1N1 flu not only poses a threat to the health of your employees and their loved ones, it also presents significant financial and economic dangers for your business and challenges your ability to comply with the various labor and employment laws. Employers are urged to act now before the H1N1 flu pandemic hits your workplace.

With the flu season almost here, employers are understandably concerned about the H1N1 flu and what its effect will be on their workplaces. The H1N1 flu is a type of respiratory disease in pigs caused by Type A influenza, which does not normally affect humans. Humans infected with the H1N1 flu present symptoms akin to those associated with the seasonal flu. The most common symptoms include fever (a temperature of at least 100° F or 37.8° C) or chills and cough or sore throat. Additional symptoms include runny nose, body aches, headache, lack of appetite, fatigue, diarrhea and vomiting.

Although the seasonal flu affects a considerably larger number of people than the H1N1 flu, the H1N1 flu has caused a significant scare among employers, particularly because it remains uncharted territory for employers and employees alike. Accordingly, the best way to prepare your workplace for the H1N1 flu pandemic is to create a plan of action and put it into place.

Anticipated Problems

The H1N1 flu pandemic will be felt by employers in many ways. Some of the most tangible employment issues include dealing with employee absenteeism and managing a contagious workplace.

Absenteeism

The H1N1 flu is expected to keep waves of workers home for various reasons. Employees might stay home because they are: sick, caring for a sick family member, caring for a child who must stay home because of pandemic-related school or daycare closures, or afraid of becoming infected with the H1N1 flu at work. As a result, employers are likely to see increased levels of absenteeism and may need to consider ways of augmenting their workforce during these times. Employers must develop policies and procedures for ensuring that these absences are treated in accordance with the Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”) and the National Labor Relations Act (“NLRA”).

Under the FMLA, the H1N1 flu may be sufficiently serious to constitute a “serious health condition” if it involves either hospitalization or continuing treatment by a health care provider for incapacitation lasting at least three consecutive days. Continuing treatment involves either two in-person doctor visits or one in-person doctor visit followed by a treatment regimen such as prescription medication. If the employee’s specific case of H1N1 flu indeed qualifies as a “serious health condition,” employers covered by the FMLA must provide the qualifying employee with job-protected leave (up to twelve weeks total). Similarly, the employee would be entitled to leave for the care of a covered family member whose H1N1 flu infection qualifies as a serious health condition. In some states, employers may be required to grant certain “emergency” job-protected leave to employees who must make arrangements to care for a child whose school or daycare facility has closed because of an H1N1 flu outbreak.

Employers also must take into consideration whether the employee infected with the H1N1 flu qualifies as an individual with a “disability” under the ADA – either because the employee’s actual H1N1 flu infection qualifies as a disability because it substantially limits a major life activity (including the operation of a major bodily function such as the respiratory system), the employee has a record of having an H1N1 flu infection that qualified as a disability, or the employee is “regarded as” being disabled because of his/her H1N1 flu infection. Under the ADA, employers may be liable for discriminating against such individuals and may be required to provide individuals whose actual H1N1 flu infection qualifies as a disability with reasonable accommodations, up to and including extended job-protected leave.

Whether an employee will receive paid leave in connection with his/her H1N1 flu infection will depend on whether the employee is exempt from the FLSA overtime requirements. If the employee is exempt from the FLSA overtime requirements, his/her salary may only be reduced under limited circumstances or the employer risks losing the employee’s exempt status designation. Accordingly, exempt employees must be compensated for absences due to the H1N1 flu unless: (1) the leave lasts at least one full day and is due to the employee’s own sickness or disability under the employer’s bona fide sick leave plan; (2) the leave, regardless of duration, is covered by the FMLA; or (3) the leave lasts at least a full work week. As with all leave requests by exempt employees, employers must be sure to carefully evaluate the request and determine whether such leave will be paid or unpaid.

Another area of legal concern is the NLRA, which protects the right of employees to engage in protected concerted activities. The NLRA generally protects employees’ group activities pertaining to wages, hours or working conditions. In light of the H1N1 flu pandemic, employers could face employees taking collective action with respect to their work hours, leave, time off policies and similar issues. These actions may constitute protected concerted activities and, as a result, employers must be careful not to retaliate (e.g., discipline), discriminate against or otherwise take action in violation of the NLRA with respect to employees engaged in these activities.

Contagious workplace

Perhaps more disconcerting than the leave issues is the possibility of sick employees actually coming to work and spreading the infection to their co-workers. Employers must enact policies and procedures to maintain a safe and healthy workplace consistent with the Occupational Safety and Health Act (“OSHA”), while preventing liability under anti-discrimination laws (such as Title VII of the Civil Rights Act and the ADA) and the NLRA.

OSHA requires employers to maintain a safe and healthy workplace and, specifically, to safeguard their employees from “recognized hazards” to their health or safety that may cause injury or death. An H1N1 flu pandemic could qualify as a recognized hazard against which employers must take action. As a result, employers simply cannot afford to be passive with respect to the pending H1N1 flu pandemic.

Employers who attempt to comply with their OSHA obligations may find themselves in hot water if they do not take adequate measures to ensure that their safety procedures, plans and/or policies are sufficient to protect their employees from “recognized hazards.” For example, an employer who provides its employees with masks because of an H1N1 flu outbreak in their workplace may be liable under OSHA if the masks are later discovered to be ineffective in protecting the employees from the H1N1 flu, particularly if the employer misrepresented the masks’ effectiveness. Employers should keep these concerns in mind when deciding whether to take certain precautions to prevent the spread of the H1N1 flu in their workplace, including the possibility of stopping business operations for a limited time period in light of a particularly severe H1N1 flu outbreak.

In complying with their OSHA obligations, however, employers must be careful not to run afoul of the various anti-discrimination laws. For example, an employer may be liable for unlawful discrimination under Title VII if it takes a tangible employment action (e.g., termination, reduction of hours) with respect to an employee because it perceives that employee as having a particular characteristic or status that increases his or her likelihood of being infected with the H1N1 flu, assuming, of course, that the particular characteristic or status is protected under Title VII (e.g., race, national origin). Similarly, an employer may be liable for unlawful discrimination under the ADA if it makes impermissible disability-related inquiries, requires an employee to undergo a medical examination, or takes a tangible employment action because of an individual’s actual or perceived disability.

Employers also should be cognizant of the NLRA in making decisions that impact their employees’ wages, hours or working conditions. In a unionized workplace, employers may be required to negotiate elements of their H1N1 flu strategy and, even in a non-unionized workplace, may face employee collective action with respect to their H1N1 flu strategy.

Recommended Solutions

The anticipated H1N1 flu pandemic presents significant legal issues for employers. Employers should consider the following in preparing their workplace for the H1N1 flu pandemic:

  • Evaluate Current Policies and Practices. The initial step should be a review of the relevant policies and practices currently in place. If you do not have a communicable disease policy, you should consider developing and implementing an appropriate policy for your workplace. The communicable disease policy should, at a minimum, describe the disease control practices to which your employees are expected to adhere, the symptoms linked to the H1N1 flu, your employees’ obligation to stay home or leave work if they believe they may be infected with the H1N1 flu and your employees’ obligation to inform a designated company official if they become infected with (or are exposed to) the H1N1 flu. Similarly, employers should consider revising their leave policies to encourage employees exhibiting H1N1 flu-like symptoms to stay home without fear of reprisal. The likelihood of a significant portion of your workforce becoming infected with the H1N1 flu – or staying home to care for an infected family member or because of a fear of contagion at work – may even call for the development of flexible work arrangements. This would allow your workplace to remain operational despite a decreased workforce. You also should carefully assess your business operations to determine the lowest number of employees necessary to remain operational. It may be necessary to outsource or at least develop a plan for temporarily supplementing your workforce to counteract employee absenteeism.
  • Implement Disease Control Practices. You should educate your employees about good hygiene as a tool for preventing the spread of the H1N1 flu. For example, you should encourage employees to cover their coughs and sneezes with tissues and, if possible, provide easy access to tissues and trash cans. You should also encourage employees to wash their hands with frequency and, if possible, establish hand-sanitizing stations throughout your workplace. You should also revisit your cleaning practices to ensure that surfaces and items that are frequently touched are cleaned routinely. As with the regular influenza, employers can encourage employees to get vaccinated for both the influenza and the H1N1 flu. Employers can also provide employees with leave to get vaccinated and/or provide on-site vaccinations for both the seasonal flu and the H1N1 flu. Another important step in disease control is to implement social distancing methods that reduce the number and length of time employees are in close contact with each other. There are several ways of accomplishing social distancing, such as staggering or increasing the number of shifts, increasing the physical distance between work stations, limiting face-to-face or large group meetings and conferences and eliminating non-essential business travel.
  • Open Communication and Information Dissemination. One of the most important steps is to maintain open lines of communication with your workforce. Consider conducting training and disseminating pamphlets and/or displaying posters that describe your disease control practices and encourage employees to prevent the spread of the H1N1 flu. Similarly, you should train Human Resources personnel and other management-level employees to adequately implement your policies in an effective and non-discriminatory manner.

The H1N1 flu pandemic poses significant labor and employment issues for employers. Accordingly, it is important to prepare your workforce to meet the challenges of the H1N1 flu pandemic. Employers cannot afford to wait for the H1N1 flu pandemic to hit their workplaces before they take action. You may want to consult legal counsel to develop and implement an appropriate strategy for dealing with the impending H1N1 flu pandemic.