INTRODUCTION

Officially called Influenza A (H1N1), swine flu can cause serious health complications or even death in a small proportion of the population. The effects of the swine flu pandemic are expected to intensify in Europe during the ‘flu season’ in autumn and winter. To date, the Health Service Executive has estimated that approximately 1,400 people a week are presenting to their GP with flu-illnesses, with at least 50 people having been hospitalised so far. With suggestions that in a worse case scenario up to 75 per cent of the workforce could be absent due to swine flu or related illnesses, the potential consequences for employers may be very serious. Pro-active planning will therefore be essential. The major test for employers will be to maintain their normal operations while complying with their legal obligations of protecting staff from unnecessary exposure, especially those who are most vulnerable. Information on the symptoms of swine flu and those most at risk is available at www.hse.ie/eng/swineflu and the HSE’s 24 Hour Information Line 1800 94 11 00; or on the Department of Health and Children’s website at www.dohc.ie/issues/swine_influenza.

With schools just re-opened and the ‘flu season’ upon us, we have prepared this brief to alert employers to specific workplace issues and the actions they should consider taking in order to minimise the potential impact which the virus may have on their business and to ensure that they discharge their obligations towards their employees.

SAFETY, HEALTH AND WELFARE AT WORK

The Safety, Health and Welfare at Work Act 2005, imposes a duty on employers to take steps reasonably practicable to ensure the health, safety and welfare of all their employees. Simple precautions may make a big difference in preventing the spread of the virus:

  • Educate staff (eg. display posters outlining the most common symptoms of swine flu, handwashing techniques and the key precautionary steps recommended by the Government).
  • Provide handwash and paper tissues in all communal areas and encourage their regular use.
  •  Regularly clean surfaces frequently touched by people (including main door handles and security switches, hotdesk areas, kitchens and toilets).
  • Consider using telephone or videoconferencing where possible, instead of face-to-face meetings.
  • Keep work-related travel to a minimum, especially abroad.
  • Arrange for those most at risk to work where personal contact is minimal (eg. allow them to work from home).
  • Send home anyone with flu-like symptoms until they have been diagnosed. Where swine flu is confirmed, ensure they do not return to work until their symptoms have completely disappeared.

EXISTING POLICIES AND PROCEDURES

It is essential that employers review and update all policies and procedures which may be affected by a swine flu outbreak. Existing sickness/absence reporting procedures should be emphasised to employees and any amendments made to take account of the swine flu threat should be clearly communicated.

Where a company has a sick pay policy in place, the employee may be entitled to be paid for swine flu related absences. However, in the absence of a sick pay policy, there is no statutory entitlement to sick pay and the employee will have to apply for state benefit.

Whilst employers usually want their staff to return to work as soon as possible after illness, those with swine flu should be encouraged to stay at home until they have completely recovered so as to reduce the risk of the infection spreading and causing further absences. Employees who are not paid in full may be tempted to return to work prematurely. Therefore, it may be wise to review sick pay provisions and consider temporarily extending the right to ensure that everyone, regardless of length of service, is entitled to at least one week’s sick pay if absent with swine flu.

Where amendments to policies and procedures are temporary, employers should expressly state this in writing in order to avoid any argument that they have become permanent terms and conditions or benefits. For instance, if existing employment contracts do not provide for flexible working arrangements, a memorandum should be issued to employees stating that such arrangements will only be available on a temporary basis, and on a case by case basis, for the duration of any outbreak and at the employer’s absolute discretion.

HIGH-RISK GROUPS

Swine flu can prove seriously harmful or potentially fatal in a very small number of cases where people have certain pre-existing conditions – eg. lung, heart, kidney or liver disease, diabetes, and asthma. Where employees are known to fall into any of these vulnerable categories, an employer should carry out a risk assessment to determine whether or not their working environment presents a high risk of infection. The most critical thing to consider will be the extent to which the employee is likely to come into contact with individuals who are infected by swine flu and whether or not that contact can be reduced or rendered unnecessary.

Where necessary, precautions should be taken (eg. moving employees to a different working environment). If in doubt, seek medical advice. It is essential to keep open communication and consultation with the individual.

PREGNANT EMPLOYEES

Pregnant employees are considered a high-risk category due to the fact that their immune system may be suppressed during pregnancy. Employers may consider taking greater precautions with such employees due to the fact that they generally cannot take over-the-counter medications. Although there is no special risk to pregnant employees, unless they have another underlying health condition, these employee may be understandably more anxious than other employees.

Under health and safety legislation, employers have a statutory obligation to take whatever steps that are necessary to ensure that pregnant employees are not exposed to risk as a result of their work. Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment on a temporary basis or allowed to take health and safety leave. An employee is entitled to full pay for the first 21 days of health and safety leave. If the risk continues beyond this period, the employee will remain on “health and safety leave until she commences her maternity leave or until her position is no longer vulnerable to risk”.

In the event that an employer considers it is safe for a pregnant employee to continue attending work but she disagrees, it will be necessary to proceed carefully.

STAFF WITH SICK DEPENDANTS

Absences in the workplace may be due to family members contracting swine flu. Young children and people aged 65 and older are considered high risk under the HSE guidelines. Employees who care for such people are a further category in respect of which greater flexibility in working arrangements may be appropriate.

Parents whose children are sick may be entitled to force majeure leave under the Parental Leave Act 1998. This statutory leave is limited to three days in any twelve month period and five days in any thirty six month period. However, employers may find that this entitlement may not be sufficient for employees whose children fall ill with swine flu or whose school or crèche closes at short notice. Existing policies may therefore have to be temporarily amended to accommodate longer absences of emergency leave in respect of dependants.

CHANGING ROLES AND HOURS

In some circumstances, it may be necessary to change job roles, either to protect employees from infection or to ensure that key work is done if a number of people are on sick leave. Requiring staff to work longer hours to cover absent colleagues may also become necessary. In return, employees may seek extra pay and the terms and conditions of their contracts of employment may govern it. Where overtime becomes necessary, employers must bear in mind that employees cannot be forced to work over 48 hours per week (generally averaged over a four month period). In addition, an employee cannot be disciplined for refusing to work overtime.

Before such changes are introduced, employers should ensure they fully consult with their employees and obtain their consent to such changes. Failure to do so could, in extreme cases result in the employee possibly claiming constructive dismissal or bring a claim for bullying or harassment where they form the opinion that their employer is placing unnecessary pressure on them to work excessive hours in order to cover absenteeism.

PREVENTING EMPLOYEE TRIPS ABROAD

Employers are entitled to prevent their staff travelling on business abroad. However, an employer cannot prevent an employee travelling on holiday, even to countries where the possibility of contracting swine flu is particularly high. As the swine flu epidemic develops, it may become advisable to discourage employees from going overseas, particularly to places where a swine flu outbreak is particularly virulent. Alternatively, an employer can prevent staff from returning to work for a period of time (eg. one week) after they return from abroad or have been in contact with relatives from abroad. This leave may be paid annual leave where the employee has leave days remaining or it may be unpaid leave.

EMPLOYEES WHO REFUSE TO ATTEND WORK

There will inevitably be some employees who are anxious to avoid the risk of contact with others and request to work from home. It may be tempting to allow this where feasible, but employers should be mindful of the need for staff to attend the workplace if several people are away from work with flu. If employers do agree to allow remote working, employers should reserve the right to require workplace attendance on short notice, making clear that disciplinary action will follow where a refusal to attend work is unreasonable.

FALSE CLAIMS

Like any type of sickness absence, swine flu “fakers” may be anticipated. It will be difficult to establish false sickness absences during a swine flu outbreak, particularly as the populace are being advised to contact a dedicated swine flu HSE hotline rather than attending at a doctor’s surgery. Employers should take guidance from medical experts, who currently estimate that the duration of expected sickness will be about seven days in cases with no complications and up to two weeks for those with complications.

Subject to any further medical advice, it is suggested that swine flu absences of less than three days or multiple swine flu absences would highlight the need to speak to the employee. Normal absence reporting procedures should be followed. A return to work interview may be an effective way of determining if the employee has genuinely been suffering from swine flu, and where necessary, they should stay home for a longer period. Needless to say, a swine flu “faker” should be disciplined.

CONFIDENTIALITY AND DATA PROTECTION

Employers owe a duty of confidentiality to their employees. It is for this very reason that employers should be wary about informing staff about a colleague having contracted swine flu or taking action which discloses the fact (eg. disinfecting their work station in view of the other staff).

Information about an employee’s physical or mental condition is ‘sensitive personal data’ under the Data Protection Acts 1988 and 2003 and must not be disclosed or processed without the employee’s express informed consent. Emailing staff to inform them that an employee has swine flu or giving information which enables them to work out who the sufferer is, will be in breach of the Data Protection Acts unless permission has been granted. When obtaining written consent to disclose such information, it is important to ensure that the employee understands the purpose and exactly what will be revealed and to whom.

Where consent is refused, it may still be necessary to inform certain staff – eg. those who work closely with the individual in question. In such circumstances, disclosure is probably allowed under the Data Protection Acts as it is necessary to comply with statutory health and safety obligations and to protect the safety of others. While in practical terms, it may be impossible to inform exposed co-workers without disclosing the identity of the infected employee, employees should be reminded that they should keep all information relating to the health of their colleagues confidential.