Pandemic preparedness in the workplace

Listen to this article

Lately, it seems as though none of us is able to turn on the television or radio without hearing the words “pandemic” or “swine flu.” While parties continue to debate about the seriousness of the H1N1 virus, it certainly brings some important issues to the forefront for employers.

What can a company do to prepare itself and its workforce in the event it is faced with a pandemic? For employers, the answer isn’t as simple as handing out hand sanitizer and tissues and telling employees to cover their mouths when they cough or stay home if they have flu symptoms so as not to spread germs to their co-workers. While these are all good practices, employers must concern themselves with a whole host of issues from leave policies to benefits to safety issues.

Many employers have expressed an interest in contingency planning for a true pandemic; however, they are unsure how to gather the necessary information from their employees without exposing themselves to potential liability in connection with violating their employees’ rights to privacy and/or equal employment opportunity laws. In this article, you will find several suggestions to help employers successfully carry out contingency plan objectives.

Employers will likely want to find a way to determine how many of their employees are at greater risk for absence in the event of a pandemic. There is a right and a wrong way to obtain such information. For example, it would violate the Americans with Disabilities Act to specifically ask employees whether they have a pre-existing health condition that would make them more susceptible to a virus like the H1N1 virus.

A better solution would be to provide employees with an anonymous survey that asks them to respond to questions about their propensity for absence for non-medical, as well as medical reasons. For example, an anonymous survey that addresses how an employee might be affected by school closures, public transportations shut downs, and the need to care for dependents, as well as whether the employee or the employee’s dependents fall into a category that would be considered at high risk for complications related to the flu virus would be considered compliant with the ADA. An employer would also be allowed to inquire as to whether its employees have been exposed to such a virus by asking whether any of the employees’ friends or family members have confirmed cases of the illness.

In the event a company’s employee has a confirmed case of an illness such as the H1N1 virus, the employer will naturally wish to take steps to reduce the risk that the illness will spread to other employees. There are, however, limits as to the type of information an employer can share about an individual employee’s health condition in the workplace.

While the employer is prohibited from sharing information about the employee’s health condition, it may provide information about the employee’s leave status (excluding the specific medical reasons for the leave) to those who need to know, such as the individual’s supervisor and other members of management who need to know whether the employee will be out for purposes of scheduling and assigning the affected employee’s work to other employees while the employee is away from the workplace.
The employer may also disclose limited information to the employer’s direct supervisor in order to provide a requested reasonable accommodation.

Employers will also be required to address employee leave issues. Employees may be eligible for state and federal family medical leave in the event the illness at issue is considered a “serious health condition” under the law or the individual experiences complications that would be defined as a “serious health condition.” Employees may also be eligible for family medical leave in order to care for a sick spouse or child.

An employer would not be required to provide an employee with leave to care for a child who is not affected by the illness, but who attends a school that has been closed as a precautionary measure. That being said, we would recommend that employers review their leave policies. It may be especially important for an employer to have flexible policies that reduce the risk that the illness will spread to other employees in the workplace.

Small businesses or employers with a large number of affected employees may also need to review and revise their paid leave policies, as it may not be financially feasible to provide paid leave to all affected employees. In such case, an employer should consult with counsel to ensure that any revisions to its leave policy comply with state and local law and any other contractual obligations the employer may have to its employees.