HR Specialist: Pennslyvania Employment Law

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by Heather A. Hoyt, Esq.

Federal and state public health agencies are closely monitoring the H1N1 influenza (also known as swine flu) that was first identified this spring. Since then, every state in the U.S. has had confirmed cases of the virus.

This summer, the World Health Organization raised its pandemic alert level to Phase 6, signaling that a global pandemic was under way.

It’s not time to panic—but it is time to think strategically, be proactive and be prepared.

No one can predict the timing and severity of a pandemic. Thus far, the H1N1 flu has been relatively mild, with effects similar to the seasonal flu. Most people have recovered without needing medical treatment.

But even with the mild disease caused by the new virus, the U.S. Centers for Disease Control and Prevention estimate that the world could experience anywhere from 2 million to 7.4 million deaths (projected from data obtained from a similar 1957 pandemic). Many more may be hospitalized, and you can be sure there will be a surge in visits to doctors’ offices.

Even a pandemic with a relatively mild disease can significantly affect the operations of governments, businesses, schools, health care providers—and businesses such as yours.

Start planning now

What should businesses do to prepare for a pandemic? Now is the time to proactively address how you will sustain your operations when many of your employees get sick.

Employers will play an important role in protecting employees’ health, thus limiting the impact that a pandemic will have on the economy overall.

If you operate in the health care, banking, energy and telecommunications sectors, you have a special obligation to plan for an outbreak, since others will depend on you to keep running. But every business has customers it needs to serve—so every business should have a continuity plan in place.

Elements of your plan

Appoint a pandemic coordinator who will be responsible for your planning process. That person should address the impact a pandemic might have on your operations and finances, as well as the operations and finances of your suppliers, vendors and contractors.

The coordinator also should be responsible for maintaining up-to-date pandemic information from reliable sources, such as the Centers for Disease Control and local public health agencies. (See www.theHRSpecialist.com/flu for links to good information sources.)

Employers should:

• Plan for the pandemic’s impact on employees, including estimating employee absences and identifying positions essential to the business.
• Cross-train employees or develop ways to function in the absence of employees holding these positions.
• Plan to increase use of e-mail and teleconferencing to minimize face-to-face contact.
• Consider implementing engineering controls, such as sneeze barriers and improved ventilation.
• Review sick leave policies with an eye toward a pandemic. Adopting revised policies to use in the event of a pandemic providing for liberal leave and nonpunitive repercussions will encourage ill employees to remain home during a pandemic phase.
• Institute flexible work arrangements, including the use of telecommuting, flexible work hours and staggered shifts. These measures can minimize employee and customer exposure to the flu, as well as prevent spreading at the workplace.
• Communicate regularly with employees about your flu preparations. Arrange to have the company’s web site provide up-to-date information regarding the pandemic. Distribute materials explaining pandemic fundamentals, including strategies to reduce the spread of the flu through good hygiene.

Employment law implications

The H1N1 outbreak could trigger ADA and FMLA issues you’ll need to deal with.

If your workers have traveled to areas experiencing high rates of H1N1 infection, you may be tempted to require medical exams or otherwise obtain information about their health. Be careful. Though well intended, such tests likely would violate the ADA.

Similarly, you may want to do “contact tracing” if you learn an employee is infected with the virus. This may run afoul of the ADA, HIPAA or other privacy laws. Leave such tracking to public health authorities. When in doubt, consult an attorney.

The FMLA certainly will be implicated during a pandemic, because many employees will request leave to care for themselves or family members who are ill. The H1N1 virus may be considered a “serious health condition” under the law.

Plan now how you will handle it if you receive a large number of leave requests during a pandemic. It’s crucial to calculate the impact those employee absences will have on your operations.

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Author: Heather A. Hoyt is an attorney with Pepper Hamilton LLP (www.pepperlaw.com), a Philadelphia-based multipractice law firm. She concentrates her practice on counseling employers on labor and employment matters. Heather can be reached at (610) 640-7833 or hoyth@pepperlaw.com.