On April 26, 2009, the U.S. Department of Health and Human Services issued a nationwide public health emergency declaration in connection with human infections of the H1N1 influenza virus (aka "swine flu"), and the World Health Organization is on the verge of declaring it a pandemic. The Centers for Disease Control and Prevention reported 286 laboratory-confirmed U.S. cases in 36 states as of May 4, 2009, and medical professionals predict that H1N1 may last well through next fall and winter, when it is predicted to gain momentum in North America. Although the final magnitude and scope of H1N1 is unknown, employers will face many challenging issues that will require them to take affirmative steps to protect their workers and operations.

Some Questions and Answers for Employers

Pandemic outbreaks pose unique employment problems. For example, can an employee stay home under the Family and Medical Leave Act (FMLA) to avoid catching swine flu? Under the current FMLA regulations, an employee cannot stay home to avoid catching swine or any other strain of influenza. If, however, an FMLA-eligible employee catches an influenza that incapacitates him/her for more than three consecutive days and requires visits to a health care professional and/or a regime of continuing treatment, FMLA leave may be available. Also, earlier this week, Sen. Edward M. Kennedy (D-Mass.) and Rep. Rosa DeLauro (D-Conn.) wrote colleagues seeking sponsors to reintroduce the Healthy Families Act, which would let workers earn up to seven paid sick days a year — days that could also be used to care for a family member. Although no date was specified, a Kennedy aide said the senator's intent was to make a move by the end of May.

Another question employers may face is whether employees can be disciplined or discharged for refusing to follow company policies to minimize the spread of influenza. Although it will be extremely challenging (and may involve medical privacy laws) to manage the spread of influenza, employers may be able to send infected employees home from work and enforce standing work rules regarding call-offs and paid/unpaid sick leave. Certainly, an employer has a right to protect its workforce from threats to health and safety. Managing such a threat, however, will require careful analysis and review of applicable federal and state laws.

Finally, employers may be forced to consider whether an employee can refuse to come to work for fear of exposure to pandemic flu. The answer to this question will likely depend on the reasonableness of the threat of exposure and whether the employer has taken any action to ensure that such exposure is substantially limited. OSHA regulations may come into play if employers are not maintaining their workplaces free from recognized hazards.

Answering the many questions that may face employers within the U.S. as a result of the H1N1 pandemic can be difficult and will likely require the advice of counsel. Employers will need to look to federal and state laws (where applicable) for guidance that is specific to the circumstances presented. Most important, however, employers should take steps to develop a pandemic influenza protocol that addresses business continuity (e.g. employee replacement and telecommuting), travel restrictions, protocols for mitigating the spread of illness in the workplace and the application of paid and unpaid time off policies.

Some Employer Action Items

As employers proceed with the development of illness-related disaster contingency plans, the following actions should be taken:

  • Understand federal, state and local benefits and employment laws and the potential impact they may have on business operations and emergency plans.
  • Analyze the capability of national and local governments to provide assistance to the company and employees.
  • Identify essential employees and other critical inputs (e.g., raw materials, suppliers, subcontractor services/products and logistics) required to maintain critical business operations by location and function during a pandemic.
  • Ensure staffing plans have sufficient redundancy to allow for anticipated absenteeism, and cross-train employees to fill essential vacancies that might occur.
  • Confirm that an employee assistance plan (EAP) is prepared to address employee concerns, particularly emotional and mental health concerns, during the pandemic.
  • Evaluate the need for antiviral medications and plan for access, storage, dispensing by medical personnel and distribution consistent with federal, state and local laws.
  • Establish and clearly communicate policies on sick leave, family leave and employee compensation.
  • Assess the availability of medical, mental health and social services for employees who may be affected by the pandemic.
  • Align business policies with federal, state and local labor laws.
For more information on developing a protocol in connection with H1N1 influenza or any other pandemic outbreak, please contact a Buchanan Ingersoll & Rooney Labor and Employment attorney.