Mark Lies’ phone was ringing throughout Monday with questions from employers concerned about employees returning from Mexico, where the outbreak of the H1N1 flu—also called the "swine flu"—first resulted in several deaths.
Lies, an attorney with Seyfarth Shaw in Chicago, asked the employers where the employees were coming back from. If the workers were returning from Mexico City, where there are many reports of the flu, he recommended that they consider requiring the employees to stay away from work for two to three days in case the flu was incubating. If they didn’t become ill during that time, he said, it probably would be a safe bet that they didn’t contract the flu.
But some employers wanted to go further than this, he told SHRM Online. They required employees returning from business trips in Mexico in spring 2009 to go to a doctor and get a swab test, paid for by the employers, to see if the employees had the flu. The employers would not permit employees to return to work until they were cleared by a doctor. If employees went to Mexico for spring break, some employers decided they couldn’t take that risk either and required employees to stay home or get the swab test, which in this case the employers would not pay for, and then be cleared to return to work.
Other employers are doing neither so far, instead informing employees that they are following the outbreak and telling them about modes of transmission and ways to prevent the flu’s spread. Many are requiring employees to report immediately to the employer symptoms of the swine flu so the employer can institute appropriate action.
Because the flu has an incubation period of two to three days, employees might have the swine flu without realizing it and might spread it, Lies noted. This isn’t like the avian flu where the flu spread just from contact with chickens to humans. Already the swine flu is being contracted from human-to-human contact into at least two countries in one World Health Organization region, which is why the World Health Organization has issued a level five pandemic alert, the U.S. Department of Homeland Security has noted in a flu outbreak update. (The alerts go up to level six.)
Some employees are staying home if they get sick out of concern about potentially spreading the flu. And some employers are sending workers home if they show symptoms. The flu is spreading fast. Already there are cases being reported in New York and a death of a 23-month-old toddler reported in Texas attributable to the H1N1 flu. This is no time to stick your head in the sand, Lies warned.
But it’s not time to panic either, former Assistant Secretary of Labor for Occupational Safety and Health Edwin Foulke Jr. said in an April 29 interview. The ultimate goal should be to protect employees and stay in operations, which he said will require employers to “plan ahead.”
Employers should have one point of contact getting the word out to employees that they are dealing with the flu outbreak, Foulke said, noting that now is the time for employers to make sure they have and are following their emergency response plans. Employers should make sure they have up-to-date emergency contact information. And employers need to send a consistent message to employees, giving careful thought to how they communicate. Let employees know you will stay on top of this health threat and keep them informed, added Foulke, who now is an attorney with Fisher & Phillips in Atlanta.
In addition to the health risks, there are legal risks, Lies noted. The Occupational Safety and Health Act (OSH Act) has a general duty clause, which directs the Occupational Safety and Health Administration (OSHA) to use outside, recognized standards. In this case, he said, OSHA will look to the Centers for Disease Control and Prevention (CDC), which has set up a web site about the H1N1 flu.
In addition, OSHA has helpful guidance on responding to pandemics in the workplace, including in health care, which would be the most exposed industry if there is a pandemic and hospital beds are full, Foulke noted.
OSHA probably won’t start citing employers unless the flu outbreak becomes an epidemic, Lies said. But if it continues to spread, there might be citations, such as if in the health care industry employers unreasonably do not give employees anti-virals and do not take any type of action to prevent employees from contracting the illness. The CDC web site has recommendations about how employers can help prevent the flu’s spread, and these recommendations should be followed by employers, Lies emphasized.
In addition, employers should be aware that the OSH Act prevents them from retaliating against employees who refuse to work if they reasonably believe they would be in danger at work. For example, if an employee hears that colleagues have the swine flu and the employer doesn’t have a plan to address it, the employee could reasonably refuse to come in. Nonexempt employees wouldn’t have to be paid in that situation, he said, but he noted that when he helped employers prepare for the avian flu, many said they would pay employees anyway.
The nonretaliation provision also would apply to an employee who refuses to travel out of reasonable health concerns, Foulke pointed out, adding that there might be National Labor Relations Act issues as well.
Be careful not to violate Title VII’s prohibition on national origin discrimination, Steve McCown of Littler Mendelson’s Dallas office also told SHRM Online. Absent actual symptoms, generalized assumptions about the health risks of employees coming from a particular country might be grounds for a discrimination claim, he cautioned.
Prepare for the Worst
Even though employers should not panic and should not create unnecessary fear among employees, Foulke noted ways employers should prepare for worst-case scenarios. Employers might consider whether paying employees in advance or offering telecommuting opportunities are options, Foulke noted. He said that employers should take into account any cross-training they have provided in case some employees have to stay home and cannot telecommute, should the flu outbreak turn into an epidemic. Also, check with vendors and suppliers to make sure they are taking steps to ensure continued operations, he recommended, noting that this way employers can ensure their clients that they are on top of the situation.
Employers should be sure to follow any obligations that arise under the Family and Medical Leave Act. As for the Americans with Disabilities Act, Lies said that because the swine flu typically is short term, many employees who get the flu arguably would not be covered.
Now that the swine flu is in humans, it can mutate, which can lead to variations of the flu that are more difficult to treat, Lies said, noting that the flu pandemic of 1918 that killed millions actually was a second outbreak of the flu following a first outbreak of a more benign variety.
Travel policies might have to be adjusted, as they were with the severe acute respiratory syndrome (SARS) outbreak, he added. Employees might have to be told to cancel trips to areas with a high level of infection or stay in play and consult with doctors, as some employees were told when they were on business trips in China during the SARS outbreak, he said. This can “become an emotional issue,” he noted, adding that if many business trips are canceled, the economy could take yet another hit.
Some businesses or places of employment might even have to close temporarily. Lies noted that on April 29 an elementary school in Chicago closed after one student reportedly got the H1N1 flu. If there is a pandemic, the federal government is likely to close all schools, Foulke said, noting that employers should prepare for this possibility and have a plan for how their telecommuting policies might need to be adjusted and how work might have to be reassigned temporarily.
Above all else, Lies said, HR should be “quick and responsive” to the swine flu outbreak, as the situation is “very fluid.”
Allen Smith, J.D., is manager of workplace law content for SHRM.
Encouraging Absenteeism, HR Magazine, October 2008