Employers Should Prepare For
Possible Swine Flu Pandemic
Minnesota state officials recently confirmed the state’s first case of swine influenza, more commonly known as the “swine flu.” Although confirmed cases of the swine flu in the United States are limited and the swine flu outbreak has not been declared a pandemic, Minnesota employers may want to take advantage of the early stages of the outbreak to consider how they will prepare for and address a pandemic and/or outbreak of illnesses within their own workforce. Specifically, employers should consider the following:
Educate Your Workforce
Fear and paranoia among employees during potential health crises may be tempered with education regarding the symptoms and prevention of an illness. Many employees know that swine flu is a contagious virus with symptoms similar to those of typical influenza. Employees may not be aware that, like the typical seasonal flu, swine flu in humans can vary in severity from mild to severe and is typically treatable by antiviral drugs. Death caused by the swine flu is not common in the United States among humans.
Employees should be made aware of how to prevent and identify potential cases of the swine flu. Symptoms should not be taken lightly; infected individuals may be contagious beginning one day before they develop symptoms and up to seven days after the onset of any symptoms. To help limit the spread of swine flu among humans, the Occupational Safety and Health Administration and Centers for Disease Control and Prevention have issued guidance regarding the steps that employers can take to prevent a swine flu outbreak in the workplace. These steps include: (i) encouraging employees who are sick to stay home; (ii) directing employees to wash their hands frequently and to avoid touching their noses, mouths, and eyes, especially after a cough or sneeze; (iii) making tissues and hand sanitizer available to employees at all times; and (iv) advising employees to avoid close contact with co-workers, especially those who are experiencing flu-like symptoms.
Consider How a Pandemic Will Affect Current Employee Policies
Employers may want to (i) determine how a potential swine flu pandemic could affect their business operations; and (ii) consider contingency plans. Current employee policies may provide a blueprint for such contingency plans. These policies should be thoroughly reviewed so they are ready to be implemented in case of a pandemic. In particular, employers may wish to consider the following policies:
- Sick Leave and Attendance Policies. Employers should consider adding language to policies suggesting that employees with swine flu-like symptoms stay home from work and that provide guidance to employees regarding how to report such absences to their employer.
- Vacation/PTO Policies. Employers should consider making pandemic-related exceptions to certain policies that address the accrual and use of vacation or PTO. For example, some employers have implemented policies that prohibit the use of vacation or PTO time before it has been earned by an employee, while other policies state that vacation or PTO time will be granted on a first-come, first-served basis. As currently drafted, these policies may discourage sick employees from staying at home.
- Telecommuting. Is it possible for employees to work from home during the swine flu incubation period? If so, it may be wise to establish a telecommuting policy that addresses who may work from home during the flu’s incubation period, potential wage and hour issues that may arise if non-exempt employees are allowed to work from home, and the use and dissemination of confidential or trade secret materials while working at home.
Employees should be reminded of these policies in anticipation of a swine flu pandemic.
Of course, even if employers do not revise their policies and instead wish to consider the above issues on a case-by-case basis should a pandemic occur, employers should make sure they act consistently with regard to all employees and in compliance with applicable laws.
Be Mindful of Applicable Federal, State, and Local Laws
An employer’s reaction to a swine flu pandemic may raise issues under federal, state, and local laws, including, without limitation, the Family and Medical Leave Act, the Americans With Disabilities Act, and the Health Insurance Portability and Accountability Act (HIPAA). Depending on the circumstances, these laws may affect employee leaves of absence, an employer’s ability to request medical examinations of potentially ill or infected employees, and return-to-work procedures. In addition, employers must be careful not to share employee medical information in violation of HIPAA or other applicable laws.
Whom to Contact
Please contact
Laura Pfeiffer,
Mark Pihart, or
Megan Ruwe at Winthrop & Weinstine, P.A., if you have any questions regarding preparations for a potential swine flu pandemic or federal or state laws that may affect your preparations. We are here to help.
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NOTICE: This newsletter is a periodic publication of Winthrop & Weinstine, P.A., and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your legal counsel concerning your situation and any specific legal questions you may have.