Scope—This article provides an overview of how employers can respond to the threat presented by the flu virus and other epidemics. To a lesser extent, this article discusses how employers can prepare for, and respond to, environmental threats in the workplace. The article includes information on epidemic preparedness, prevention, employment law issues associated with epidemics, efficient business operations during an epidemic and business recovery following an epidemic. This article also contains information on global epidemic situations, as well as special considerations for high-risk industries. It does specifically not address managing through other emergencies, such as terrorism or natural disasters, although many of the aspects of business continuity planning would be consistent regardless of the type of the emergency.
Throughout history, the influenza pandemics have had devastating consequences. Whenever any widespread virus, bacterium or other biological threat is presented, employers should take care to protect their human resources and their future business operations. Employers should anticipate that they will periodically face epidemics and other biological threats and take proactive steps to protect their employees and their organizations. “It’s better to be prepared for something that doesn’t happen than unprepared for something that does,” says Michael Osterholm, director of the University of Minnesota’s Center for Infectious Disease Research and Policy (CIDRAP).
The recent experience with the H1N1 (swine flu) virus provides lessons that are applicable to many other business continuity planning situations.
This article provides a roadmap for managing an epidemic in the workplace based on four stages of a biological threat:
- Preparing for the threat.
- Implementing preventive measures.
- Getting through the flu season.
- Managing business recovery post-epidemic.
The article also addresses global considerations and high-risk workplaces.
Preparing for a Biological Threat
While some emergencies, such as flu epidemics or Midwestern blizzards, strike more often than others, the actions an organization takes to prepare for something as common as a flu epidemic will help it get ready for even graver environmental threats. Many disasters may also be accompanied by biological hazards, so businesses must prepare for a biological threat as they would for any other threat that could impair or completely halt their activities.
Business continuity planning
A business continuity plan is a logistical plan that details how an organization will recover interrupted critical business functions after a disaster or disruption has occurred. Employers should take actions to review existing business continuity plans currently in place to ensure that the plan will work in the event of an epidemic. If no business continuity plan exists, employers should begin to develop a plan for a worst-case scenario that may occur during the flu season. The following are resources to help an organization prepare a flu pandemic business continuity plan.
Senior managers should be continuously committed to emergency preparedness and business continuity planning. It is important to enlist companywide, top-down support. A crisis such as a flu pandemic can precipitate confusion, and even panic, among employees—and even senior managers. Armed with a business continuity plan, executives can respond in an orderly, rational way. A business continuity plan allows decisions to be made along predetermined guidelines. Resources can be pre-placed to deal with the possible threat. If one can predict a threat, one can predict a response to the threat. By planning ahead, employers may be able to avoid having to make devastating public apologies. See, BP CEO apologizes for “thoughtless” oil spill comment.
The first step in business continuity planning is the creation of a business continuity team. The team should have a leader who has education or experience in disaster planning and emergency preparedness. This is likely to be the head of security or a health and safety officer. Once the team is established, it should set priorities and develop a plan for each priority.
A plan should not undergo its first test during a crisis. No matter how carefully crafted it is, the plan will probably reveal deficiencies during practice. A rehearsal will provide employees with valuable training. Simulated exercises may be used to test parts of the plan so that the entire organization need not be disrupted. The critical point is that employees know their role in crisis response and be proficient in the execution of their responsibilities. See, Emergency Preparedness and Preparation Makes Safe Employees, Experts Say.
Planning for health-related emergencies
Employers should prepare for the possibility that a large portion of their workforce will be unable to work during the flu season. See, How to Handle Communicable Diseases in the Workplace. The business continuity plan should have the solution to this problem as its primary focus. Some questions the plan should answer include:
- How many absences can we handle before business operations are interrupted?
- How do we keep operations running?
- What changes can we make to keep the business operating?
It is likely that policies will need to be reviewed, modified or even created when planning for an epidemic. The changes, and the duration of the changes, will need to be communicated. In some instances, a policy change may only be temporary, and that should be communicated as well.
Labor relations considerations
Employers operating in a unionized work environment have additional concerns when it comes to epidemic planning. During the business continuity planning process, unionized employers should closely review their collective bargaining agreements to determine whether special provisions have been made in the event of a disruption of business operations. For example, some agreements may have provisions that provide paid time off to union workers in the event of an emergency when employees are prohibited from reporting to work. Any such special considerations should be taken into account when developing a plan.
Implementing Preventive Measures
An employer doesn’t have to wait for disaster to strike before putting a plan into action. A positive aspect of influenza epidemic planning is that an employer can utilize a number of preventive measures to limit the effect of the illness on the workplace. Unlike other types of disasters, an employer has a certain degree of control over how the influenza virus will affect its workforce. See, Responding to the avian influenza pandemic threat: Recommended strategic actions.
Commonly used preventive measures
Many of the most commonly suggested preventive measures are inexpensive and easy to obtain. They include providing tissues and hand sanitizers to employees. Employers can educate employees on proper ways of washing hands and what to do if flu-like symptoms develop. Communication with employees should occur frequently on these precautions, and employers should hang posters in bathrooms and eating areas on the proper way to stop the spread of germs. Depending on the industry and employee’s proximity to others, an employer may also wish to provide respirators or masks to employees in the workplace to further hinder the spread of airborne germs.
A program of timely vaccinations is one of the best ways to control flu epidemics. However, in general, employers should not mandate that employees obtain a flu shot, primarily because of the Americans with Disabilities Act and other legal issues.
Nevertheless, there are certain industries, such as health care, where mandatory flu shots are essential for both employee and patient safety. See, Flu Shot Programs Required for Health Care Organizations and Health System Requires Flu Shots to Protect Patients.
Even where flu vaccinations are not mandatory, an employer can strongly urge employees to get flu shots and provide incentives to employees who do so. Incentives may include:
- Paid time off to get the shot.
- Providing the shot for free to employees.
- Reimbursing employees for the cost of the shot.
- Hosting a flu shot clinic.
Employers can also implement a screening program in the workplace. Screening can include providing free testing to employees who are exhibiting symptoms of the flu, or requiring employees returning from high-risk areas to stay home for a predetermined amount of time to ensure that flu-like symptoms do not develop. See, Got Questions? Ask the Flu Experts! (at Q: “What steps should businesses take to prevent a flu outbreak at the worksite?”)
As part of a screening program, employers should consider how to handle employees who have not contracted the flu but have been exposed, such as an employee staying home to care for a sick child or spouse. This may include mandatory testing before returning to work or imposing quarantine on these employees until the incubation period has passed.
Getting Through the Flu Season
Despite planning and implementation of preventive measures, disaster can strike. The key in such situations is to ensure that employees remain healthy and that operations are affected as little as possible. In the event that operations are severely limited, the focus should be to ensure that business operations resume as safely and quickly as practicable.
Keeping employees healthy
A key strategy in getting through the flu season is to keep the workforce as healthy as possible. There are a number of actions that organizations can take depending upon the severity of the situation. Some of those actions include:
- Sending symptomatic employees home.
- Implementing quarantines for employees returning from high-risk areas.
- Limiting face-to-face meetings.
- Temporarily shutting down operations.
The Centers for Disease Control and Prevention (CDC) has identified several categories of individuals who are at an exceptionally high risk for developing flu-related complications. They include pregnant women, individuals 65 years of age and older, and individuals with certain chronic health conditions. Additional steps may need to be taken to ensure the health and ongoing work of these employees. Employers may wish to provide additional incentives to employees in high-risk categories to either receive a vaccination or be screened for the virus. See, Size and Scope of Wellness Incentives Grow Larger and Health Risk Assessments, Incentives Help Lower Costs.
How to handle paid leave benefits is one of the biggest concerns businesses struggle with during the flu season. With certain legal exceptions, employers are free to establish their own paid leave benefits and administer those benefits according to the best interests of the business. Before an epidemic strikes, employers should review their existing paid leave policies to determine whether modifications should be made. When the federal government recommended in August 2009 that businesses plan for a H1N1 flu pandemic by making attendance and sick leave policies more flexible, many organizations across the country were already doing just that, and many more were thinking about it. See, Flu Prompts Companies to Examine Sick Leave.
Questions to ask when reviewing paid leave policies and practices include:
- How will “excessive” employee illness be handled?
- How does one’s current policy accommodate for family illnesses?
- How will the organization apply its paid leave policy in the event of a school or child care facility closing?
- In the midst of an epidemic, will the employer still require the same level of leave substantiation that it normally requires?
- Is the implementation of flexible leave policies an option—even if temporary?
- How will the employer address employee absences related to obtaining the vaccination for themselves and their families?
Because of the risk of complications with the H1N1 virus or other epidemics, eligible employees may need to utilize the Family and Medical Leave Act (FMLA) leave. Employers should prepare for an increase in FMLA leave requests as well as an increase in administration of FMLA leave during the flu season.
The Family and Medical Leave Act (FMLA) is a federal law that requires covered employers to provide 12 weeks of job-protected leave to employees who, among other things, have serious health conditions or whose family members suffer serious health conditions. The FMLA regulations state that “ordinarily, unless complications arise, the common cold, the flu[…]are examples of conditions that do not meet the definition of a serious health condition.” However, complications can arise with influenza and other health hazards. The FMLA regulations define “serious health condition” expansively, stating that “for purposes of FMLA, ‘serious health condition’ entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care[…]or continuing treatment by a health care provider.” The FMLA regulations include within their definition of “continuing treatment” a period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves treatment two or more times within 30 days of the first day of incapacity, or treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment.
Depending upon the impact of the flu in one’s workplace or if one is operating in a high-risk industry, quarantine is another option to curb widespread influenza in the workplace. Quarantine is the mandatory isolation of an individual in an effort to contain something dangerous. Employers can impose quarantine if they believe employee safety or the business is at risk. In some instances, a mandatory quarantine can be treated as an unpaid leave, but it is a generally accepted best practice to provide paid leave to employees while they are on mandatory quarantine.
Employers must decide whether to pay employees during health-related absences. If pay is provided, the next question to address is, at what point does the employer stop paying the employee when the employee is not performing work. This issue is addressed mainly through sick leave policies, FMLA policies and disability insurance. Resolution of this issue requires examination of federal, state and local law. Currently, the federal FMLA does not require paid leave. However, some states are moving toward requiring paid leave in FMLA-type situations.
The federal Fair Labor Standards Act (FLSA) is the cornerstone of wage and hour law in the United States. Applicable provisions of this law should be considered before deciding to not pay an employee for an absence. Any applicable state laws should also be reviewed before an employer chooses to not pay an employee for an absence. Generally, under the FLSA, nonexempt or hourly employees need only be paid for actual hours worked. Unless there is a policy or practice that promises pay to employees for these types of absences, a nonexempt employee need not be paid for hours not actually worked.
Under the FLSA, exempt or salaried employees generally must receive a guaranteed weekly salary regardless of the number of hours they work during the week. However, employers may deduct from pay for full-day absences due to sickness or disability, but only “in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.” The same rule applies “if salary replacement benefits are provided under a state disability insurance law or under a state workers’ compensation law.” If there is no such plan or practice, employers cannot deduct for sickness absences of exempt or salaried employees.
However, under the FLSA, no pay is required for any workweek in which the exempt employee performs no work. Employers also may deduct for full-day sick or disability-related absences for exempt employees who are not yet eligible for the salary replacement plan or practice or who have exhausted their available leave.
The flu season can also affect work that independent contractors or consultants have been hired to perform. Employers should review contracts with these individuals and consider how excessive absences in the instance of an influenza outbreak or other epidemic will be handled. Since independent contractors and consultants are not employees, the FLSA rules mentioned above would not apply to these individuals.
Employee relations considerations
Employers should also make decisions regarding the application of attendance policies. Employers with no-fault attendance policies may decide to temporarily forgo counting absences during a flu epidemic. A decision will need to be made on how stringently sick leave and unscheduled absence rules will be applied. See, Managing Employee Attendance.
The federal government has established www.flu.gov as a resource to help educate and prepare the public during a potential flu epidemic. The site is searchable for guidance on how to handle different employment situations that may arise.
Dealing with illness in the workplace can be challenging under normal circumstances, but it is even more so when there is a potential epidemic. Without proper communication, employees can become worried about their exposure to the bacteria and viruses, and these worries can affect their productivity. Employer communications should provide relevant information and encourage employees to remain calm. Keep the following in mind when developing employee communications:
- Inform employees that the company will take any reasonable and necessary steps to ensure a safe and healthy work environment.
- Include information on what the biological threat is, including typical symptoms.
- Include information on how to protect against getting the illness.
- Advise employees of any changes to policies.
- Notify employees of any discontinued travel.
- Ask employees to come to HR with any concerns.
Communications regarding a potential epidemic will help maintain order in the workplace and reduce employee concerns.
During an outbreak of a communicable disease, employers may be uncertain about whether to tell employees that there has been a reported case in the workplace. It may not be necessary to reveal the identity of a particular employee or an employee’s family member with a contagious illness or disease in order to achieve the objective of maintaining a healthy workplace. Employers can notify employees and other relevant parties that contagious illnesses may be present in any workplace and list precautionary steps suggested by medical professionals, such as the Centers for Disease Control and Prevention or the Department of Health and Human Services. Depending on the particular facts involved, information regarding illness of an employee or family member can be protected under the Health Insurance Portability and Accountability Act (HIPAA) and/or the ADA. Even when not specifically required by law, it is important for business effectiveness to maintain the privacy of individuals with a contagious illness. Further, these matters are best handled delicately so as not to create unnecessary panic in the workplace.
In some instances, healthy employees may unreasonably refuse to come to work due to fear of contracting a disease. If this occurs, the employer should make attempts to address employees’ fears and answer questions. If healthy employees continue to refuse to come to work despite communication attempts to address fears and misconceptions, these employees may need to be informed that there is little from a legal standpoint that protects them in this situation. The Occupational Safety and Health Act (OSHA) generally does give employees the right to refuse to come to work under certain circumstances when the employees reasonably believe that coming to work would put them in serious and immediate danger. In addition, the National Labor Relations Act, while often considered a union law, also describes certain protected concerted activities that apply both to non-unionized and unionized workers, including two or more employees addressing their employer about improving their working conditions. However, both of these statutes create narrow exceptions, and an employee who is concerned about coming to work due to a flu outbreak should consult legal counsel before relying on either of these statutes as a reason for work absences.
Keeping the business running
After an approach has been established for handling workplace absences during an epidemic, the next step in dealing with a flu outbreak or other epidemic is to determine how to keep the business running smoothly despite high rates of unplanned absences.
HR professionals and top management should prepare written guidance for managers instructing them how to handle such situations. It is important for organizations to adapt quickly during an epidemic or other environmental emergency. Managers should provide constant communication to employees and upper management on staffing considerations. In turn, senior management should educate and empower frontline managers to make quick decisions affecting business operations and staffing. It is important to think creatively during such crises and to utilize temporary measures that may not have been appropriate before the crisis arose. Some staffing strategies that managers may want to consider during the flu season include:
Employers should also look to their IT departments for technology strategies that could help businesses function despite employees’ inability to work together in the same room. For employees scheduled to travel to high-risk areas, alternatives to face-to-face meetings include video conferencing, teleconferencing and webcasts. Businesses may wish to use less formal technologies such as social networking sites (e.g., Twitter, Facebook and LinkedIn) or free instant messaging services to enable employees to communicate with one another quickly while working miles apart. If these staffing strategies fail to keep operations at full capacity, the business should make plans on how to operate at a reduced capacity. See, Study: Businesses Might Not Be Able to Cope With the Flu Season.
Once an epidemic has ended and business begins to return to normal, steps should be taken to ensure a seamless recovery from emergency operations to normal operations.
The first step in returning to normal operations is communication to all employees. Employees should be notified that any policies or rules that were temporarily lifted, added or changed to accommodate the flu season are now back to normal. In addition, post-epidemic communications to employees should remind them of what the normal operating policies are and let them know when these rules will return.
Whether an organization has employees in London or Timbuktu, it should follow best practices for global pandemic planning. HR professionals should assess the risk to the employee and the risk to the business if something were to happen to a particular employee. See, Global Pandemic Planning Critical to Minimize H1N1 Flu’s Impact.
Global pandemic planning
Because the typical workplace pulls employees together in close daily contact, the international H1N1 outbreak in 2009 heightened concerns for multinational employers. Multinational companies have a keen interest in keeping staff healthy and in containing the spread of a disease, not only for the obvious reason of employee welfare, but also to keep worldwide business operations running, to minimize liability exposure and to avoid adverse publicity. No cruise line wants to be in the news for being rampant with the norovirus, and no airline wants to be identified with carrying passengers with tuberculosis—yet both are actual situations from recent history. See, Outbreak Updates for International Cruise Ships and Lawyer infected with tuberculosis apologizes to airline passengers. To respond to these concerns, multinationals may decide to launch global pandemic plans. See, WHO global influenza preparedness plan and As WHO Declares Pandemic, Study Shows Many Unprepared for HR Issues. The elements in an effective pandemic plan vary widely by employer—with the medical issues interrelating with the legal. Pandemic plans tend to address topics as varied as:
Complying with different laws in different countries
A multinational employer will need to implement a pandemic plan across its worldwide operations. However, local laws, including labor, employment and health laws, could affect the plan’s legality on a local basis—both in terms of the plan’s content and its implementation. Failure to take into account local laws could create local legal liability for the multinational employer. See, Limit Legal Concerns Arising from Swine Flu Outbreak with Global Pandemic Plans.
A best practice is to draft a global pandemic response plan template that accounts for legal compliance internationally and then adapt that template in each local jurisdiction accounting for local law. As a practical matter, a comprehensive pandemic policy drafted for the flu virus should be broad enough to account for other pandemics and perhaps for emergencies beyond pandemics, such as floods, earthquakes and tidal waves.
In much of Latin America and Europe, employers must appoint health and safety representatives, or employee health/safety committees, and confer with them on workplace health/safety policies. Rolling out new pandemic procedures requires amending existing local plans, and this process needs to follow local laws and involve local health/safety representatives. Neglecting this step by unilaterally imposing a pandemic policy may be deemed an unfair labor practice in countries where the employer sponsors health/safety representatives.
Health/safety representation aside, many countries impose obligations on employers similar to “mandatory subjects of bargaining” in unionized U.S. workforces. Labor representatives may not have an absolute right to veto a new pandemic plan, but they will likely have power to void one that was unilaterally implemented. In some countries, local government labor agencies will also have a voice. A similar issue exists in Japan and elsewhere where employers need to post written work rules.
Certain industries are at an increased risk for a flu pandemic. These industries need to take special precautions to ensure employees, customers and the business are protected. The Centers for Disease Control and Prevention have prepared planning checklists specifically for these industries that include:
Acknowledgement—This article was prepared for SHRM Online by Angela Collis, SPHR, an HR Knowledge Advisor in SHRM’s HR Knowledge Center.
|Publication Note—This treatment was first published in November 2010 and thoroughly revised March 2013. SHRM staff will update it periodically as developments in the Safety and Security Discipline warrant. For the most recent developments, see the SHRM Flu Resources page. Notify SHRM of broken links or concerns about the content by e-mailing email@example.com.|