H1N1 Featured

8:00pm EDT October 26, 2009

The recent spread of the H1N1 flu virus and threat of a pandemic, along with the upcoming flu season, could cause major problems for business. You need to prepare your company for the challenges associated with these health concerns, such as employee absenteeism, interruptions in supply and delivery, and changes in commerce patterns.

“You need to be aware of the legal landscape facing your company because of issues created by the swine flu,” says Todd L. Sarver, member of the labor and employment counseling and litigation practice at McDonald Hopkins LLC. “You also must carefully plan for these problems in a way that limits future liabilities.”

A possible H1N1 pandemic could also create problems regarding employee leave. You need to review your current sick leave policies or develop new ones to account for a possible pandemic.

“Adjusting leave policies will encourage sick employees to take time off without fear of losing their jobs and reduce the remaining employees’ exposure to swine flu,” says Brendan Fitzgerald, associate in the labor and employment counseling and litigation practice at McDonald Hopkins LLC.

Smart Business spoke with Sarver and Fitzgerald about how to prepare for a possible H1N1 pandemic and how to deal with the problems a potential pandemic would cause your business.

What legal ramifications could you face as a result of a potential H1N1 pandemic?

The Occupational Safety and Health Act’s General Duty clause requires that you provide a safe and healthy work environment for your employees. This clause protects workers from the risks of the swine flu in their place of employment. OSHA has indicated that it will adjust its priorities in the event of a pandemic to ensure that employees are adequately protected from swine flu. Companies that violate this clause will be subject to monetary fines. Civil penalties of at least $5,000 per violation or up to $70,000 per violation will be assessed to companies that willfully or repeatedly violate this clause.

What precautions should you take to prepare your company for a potential pandemic?

OSHA has issued several guidelines to help you prepare for a potential swine flu pandemic. They are as follows:

  • Develop and/or review a pandemic flu plan.
  • Review sick leave policies.
  • Work with employees to address leave, pay, transportation, travel, child care, absence and other HR-related issues.
  • Purchase flu supplies, such as touchless garbage cans, alcohol-based soap/hand sanitizer, tissues and cleaning supplies.
  • Provide employees with access to the latest flu information, including information about medical care and benefits.
  • Implement a social distancing program to limit face-to-face contact between employees and customers.
  • Develop a cross-training program to ensure continuity of essential functions.

In addition, employers need to have contingency plans in place regulating how they will staff their operations in the event of massive absenteeism.

How can you deal with problems a potential pandemic may cause at your company?

A pandemic would create many issues with employee leave. Employees may be eligible for leave under the Family and Medical Leave Act if they or their qualified family members contract the swine flu. If eligible, an employee is entitled to up to 12 weeks of unpaid FMLA leave to care for this health condition. You should review and update your leave policies to comply with the FMLA and take advantage of its protections.

You can draft new sick leave policies to provide or expand sick leave to employees with the swine flu. This can be either paid or unpaid leave, and can be granted through sick days or personal time off.

You also might want to consider alternative work arrangements to ease the impact of a pandemic on your workplace. You could allow employees to telecommute from home to avoid the spread of illness. You should create a detailed plan to cover telecommuting, especially the recording of work time. You may also consider flexible scheduling to stagger employee work times and minimize face-to-face contact among employees and the risk of spreading disease. You need to be aware of your business and customer needs and implement a policy to cover any flexible scheduling arrangement.

What other problems could an H1N1 outbreak cause?

You need to develop cross-training programs in case a large number of employees are unable to work due to illness. You must avoid any problems with the Fair Labor Standards Act when implementing these types of programs. If exempt employees are utilized in nonexempt positions while attempting to continue operations, they risk losing their exempt status. You will then be required to pay that employee overtime for all hours worked over 40 hours in the workweek. You should consult with legal counsel before instituting any cross-training programs to ensure that employees’ exempt status will be preserved.

You also need to avoid any discrimination or retaliation against employees during a possible pandemic. Treat all similarly situated employees the same and refrain from taking any adverse employment actions based on an employee’s use of leave or any employee complaint.

Examples of potentially discriminatory or retaliatory actions include:

  • Only cross-training younger workers
  • Employing a social-distancing program that separates workers perceived to have a high risk of contracting swine flu
  • Only allowing certain employees to telecommute
  • Disciplining or terminating employees for taking FMLA or other medical leave in connection with a pandemic
  • Retaliating against an employee for filing a complaint with OHSA regarding a swine flu outbreak at your company.

Todd L. Sarver is a member of the labor and employment counseling and litigation practice at McDonald Hopkins LLC. Reach him at (614) 458-0042 or tsarver@mcdonaldhopkins.com. Brendan Fitzgerald is an associate of the labor and employment counseling and litigation practice at McDonald Hopkins LLC. Reach him at (216) 430-2009 or bfitzgerald@mcdonaldhopkins.com.