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Employers, Are You Ready for the Flu Season?

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Ronald G. Guerra

You recognize the symptoms — fever, aches, chills, and tiredness — but you don't want to accept that you might have the flu. In fact, you tell yourself that you can't miss work because you are the owner or the manager; maybe you simply have too much work and can't be out for even one day, so you drag yourself into the office. During a normal influenza season that might be okay, even though it is not recommended. But this year's flu season is another matter entirely because of the H1N1 (swine) flu.

The World Health Organization, the Center for Disease Control and Prevention, and the Oregon Department of Human Services have all stated that employers and businesses will play a key role in protecting employees' health and safety. The precautions that employers take may help to avoid the effects of a pandemic flu. A presidential advisory panel reports that the H1N1 virus could infect 30 percent to 50 percent of the American population during this influenza season and cause 90,000 deaths.

Employers can take proactive steps today to prepare for the influenza. Such precautions will not only protect the individual employees but also minimize the days lost because of employee absence.

Employers should seek to educate the workforce about the symptoms, effects, and treatment to be taken if the employee suspects exposure to the H1N1 virus. Employees should know that in addition to the H1N1 virus, seasonal influenza will also be present.

Employers preparing for the flu season should take the following actions:

  • Develop a flu contingency plan.
  • Determine critical tasks necessary to keep your business running.
  • Cross-train personnel to minimize the effects of absence due to illness.
  • Provide personal protective equipment and instruct in hygiene practices.
  • Provide employee training.
  • Review leave-time policies and modify as necessary.
  • Consider telecommuting and/or alternate work hour schedules.
  • Promote social distancing and travel restrictions.

Any flu contingency plan should include information about recognizing the symptoms and about the actions the employer will take to minimize workplace infection. A basic plan would provide that:

  • Employees will not return to work if they are ill and will seek medical treatment if symptoms are severe.
  • Employees who are ill will stay home until they have been free of fever (101°) for 24 hours.
  • Household members of patients with influenza will be encouraged to voluntarily remain at home until the period of risk for influenza incubation is past.
  • Workplace and schedule changes will be made to decrease social density to the greatest degree possible without disrupting essential services.
  • Sick leave plans will be modified to accommodate infection-reduction plans.

Even the best employer plans will not prevent the flu from affecting the workplace. For this reason, employers should prepare and plan for operations with a reduced workforce. Be sure that your employment policies do not penalize employees for absenteeism if the reason for the absence is the flu. Otherwise, sick employees may be tempted to come to work instead of staying home.

Employers may wish to prohibit homemade food from being brought into the workplace to share with coworkers during the holiday season this year. And employers may wish to cancel a company holiday party to reduce the social settings in which illness can be transmitted from person to person.

Reducing unnecessary meetings in closed offices may help to reduce the transmission of the flu virus. Ensuring adequate ventilation of the workplace, including introduction of outside air, is important. Discourage employees from using other employees' phones, desks, offices, or equipment where practical. Develop routine sanitizing and cleaning procedures for each employee's work space, including the phone, desk top, and equipment.

Employers should remain vigilant in maintaining a clean and safe workplace. Consult the county or state health departments for assistance in developing appropriate guidelines. Other sources of information include:

Finally, employers should provide appropriate hygiene products and cleaning materials for the use of all employees. Encourage employees to wash their hands frequently with soap and hot water or an alcohol-based hand cleaner, especially after being in high-contact areas of the workplace, like break rooms, lunch rooms, conference rooms, and bathrooms. Use individual paper towels instead of a common cloth towel for drying hands.

Why would an attorney write about preparing for the flu season? Because it deals with the employer's employment practices. Whenever an employer takes any action involving its employees it makes itself potentially liable. Legal liability may arise because some employer action violates state or federal law or implicates the application of a company personnel policy in a discriminatory manner. One federal law that affects the workplace and an employer's swine flu contingency plan is the Americans with Disabilities Act (ADA). The ADA prohibits discrimination based on a person's disability or the perception that a person is disabled.

The Equal Employment Opportunity Commission (EEOC) recently issued guidance regarding ADA-compliant workplace preparation strategies for the swine flu. This guidance educates employers about when the employer may require employees to submit to a medical examination or to ask disability-related questions. Under the EEOC guidance, an employer may request a medical examination only if the test is job-related and consistent with business necessity. The employer has the burden of establishing how the test is job-related and consistent with business necessity.

A recent case decided by the Ninth Circuit Court of Appeals, and appealed from the U.S. District Court for the District of Oregon, illustrates the potential liability for employers. On September 28, 2009, the court of appeals decided Indergard v. Georgia-Pacific Corporation, No. 08-35278. Indergard took medical leave in December 2003 to undergo surgery for work-related and non-work-related injuries to her knees but did not return to work until March 2005. GP required employees returning from medical leave to submit to a physical capacity evaluation (PCE). After undergoing the PCE, Indergard was informed that she could not perform the essential functions of her prior position and that there were no other available positions. She was terminated from employment. Indergard sued, alleging that the PCE was a medical examination in violation of the ADA and Oregon disability law. The case was dismissed by the trial court after granting GP's motion for summary judgment.

On appeal the court found (a) that an employer may not require a current employee to undergo a medical examination unless the examination is shown to be job-related and consistent with business necessity and (b) that this provision applied to all employees, whether or not they were disabled under the ADA. The court then found that the PCE was a medical examination. The case was vacated and remanded to the U.S. District Court to determine whether the PCE was job-related and consistent with business necessity.

In preparing a swine flu contingency plan employers must carefully consider whether and when they will ask an employee to undergo a medical examination. Then the employer must consider the result to be a medical record and keep it confidential and separate from the employee's general personnel file. Employers should always consult with legal counsel before taking action that will have a direct effect on employees.

Employers will not avoid all the troubles of the H1N1 flu this year, but by taking reasonable precautions an employer can dramatically reduce loss of productive time.

Published Winter 2010

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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