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Swine Flu – Workplace Preparations For Employers

Labor & Employment Alert Otto W. Immel, Courtney R. Heeren

In light of continued media coverage and public concern related to the H1N1 virus, commonly known as the Swine Flu, many companies are facing questions from employees and are looking for guidance on best practices to deal with a possible outbreak. Employers can use this time to develop a workplace preparedness plan and maintain open communications with employees regarding their efforts to maintain a safe working environment. Although the scope and severity of the Swine Flu is not yet known, there were 141 confirmed cases of Swine Flu and one death in the United States as of May 1, 2009, according to the Center for Disease Control and Prevention ("CDC").1 Following is a list of practical tips and potential legal issues of which employers should be aware as our knowledge of the Swine Flu develops.

Practical Tips

  • Develop or activate a safety team and safety plan. The Occupational Safety and Health Administration ("OSHA") provides a comprehensive guide on preparing a workplace for a pandemic at http://www.osha.gov/Publications/influenza_pandemic.html. The Department of Health and Human Services ("DHHS") also provides a useful Business Pandemic Influenza Planning Checklist.
  • If an employer learns that an employee is suffering from flu-like symptoms, it can ask for voluntary disclosure of the symptoms and encourage the employee to seek medical attention. If an employee provides this limited information related to his or her symptoms, the supervisor may need to alert the safety team and/or relevant supervisor(s), keeping in mind that the supervisor should only share this information with Human Resources and other necessary employees in order to avoid unnecessary panic or embarrassment or other legal implications (discussed further below).
  • Circulate information to all employees regarding recognition of flu-like symptoms and prevention measures, reiterating to employees that prevention is largely through common sense steps such as proper hygiene by individual employees and maintenance of cleanliness in common areas such as kitchens and break rooms. Circulate literature from the CDC or other government authorities such as the CDC's publication, "Swine Influenza and You," at http://www.cdc.gov/swineflu/swineflu_you.htm.
  • Review policies regarding business travel, especially to and from areas with high concentrations of confirmed Swine Flu cases. Many companies are restricting non-essential travel to affected areas. It may also be an opportune time to review travel insurance.

Employers also can use this time to think proactively about a number of employment-related issues that could arise from an influenza pandemic:

HIPAA and State Medical Privacy Concerns

If the employer chooses to solicit voluntary disclosure of flu-like symptoms from its workforce, it should ensure that supervisors keep this information private and do not use it for any purpose other than the immediate safety of the workplace. Also, employers should limit the information gathered about employees with flu-like symptoms. There is no need to inquire into medical information beyond that related to the Swine Flu, which could implicate HIPAA and state medical privacy laws or the Americans with Disabilities Act.

FMLA and Other Leave

If an employer encourages employees with flu-like symptoms to stay home, it should consider whether the absences will, at least for the immediate future, be counted as occurrences under the employer's attendance policy if they are not protected under the FMLA. Anxiety over the increased threat of Swine Flu is likely to lead employees to seek medical treatment for ordinary colds and flu. Doing so may result in the absence qualifying as an FMLA "serious health condition." Employers should, even more carefully than usual, review short-duration absences to ensure proper FMLA treatment.

Potential Discrimination and Harassment Claims

Ensure that supervisors are not targeting people for scrutiny or adverse treatment based on a race, ethnicity or national origin that is associated with the flu, particularly Latinos or Mexican Americans.

Potential Workers' Compensation Claims

If an employee's work environment exposes him or her to a greater risk of contracting Swine Flu, state workers' compensation laws may apply. In the event an employee claims that he or she contracted the Swine Flu at work, an employer may have an obligation to file a First Report of Injury form.

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If you have any questions regarding workplace preparedness or other legal issues that may arise, please contact Otto Immel at 239-659-5041 / otto.immel@quarles.com, Courtney Heeren at 414-277-3071 / courtney.heeren@quarles.com, or your Quarles & Brady attorney.

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1
Centers for Disease Control and Prevention, http://www.cdc.gov/h1n1flu/.