H1N1 Flu: What To Do From a Legal Perspective

In the Press · May 1, 2009

As the H1N1 virus (formerly swine flu) continues to spread, it is important for employers to develop and implement company-wide policies that both protect employees and minimize any disruption to normal business operations.  Prince Lobel has created this Alert to provide employers with the information necessary to create appropriate policies and to inform them of specific legal issues they need to consider. 

According to CNN.com, H1N1 has spread to the United States, Canada, New Zealand, Spain, Israel, and the United Kingdom.  The CDC reports that nationwide, there have been 109 confirmed cases and one death.  While some of these cases have been mild, there are, to date, at least 152 confirmed deaths from the current flu outbreak.  Click here to view an interactive map showing domestic and overseas cases, deaths and the evolution of this outbreak.

Since this epidemic is still evolving in scope and severity, we urge all companies to monitor and comply with the recommendations issued by the U.S. Government, the Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO).  Click on any of these links for information about symptoms, transmission, and advice about when employees should see a healthcare professional.

Immediate Actions for Employers to Consider

Given the increasing spread of the H1N1 outbreak, employers should consider immediately implementing the following company-wide policies and procedures:

1.  Appoint a Designated Flu Coordinator

Designate an employee responsible for monitoring and disseminating information to the company about the H1N1 virus and about the company’s related policies.  This coordinator should also be the "go-to" person for those employees who believe they are experiencing flu symptoms.  Companies may also consider creating an internal "hotline" to the designated coordinator. 

2.  Create a Private Reporting Protocol 

Consider creating and disseminating an official company document for those individuals who experience flu symptoms. This document would include who to contact and how to proceed if one becomes concerned of H1N1 infection. Companies may also want to consider requiring employees to report any recent travel to Mexico.

Note: When discussing an employee’s health condition or personal experiences, employers must be careful to comply with all applicable privacy laws.  Any protocol that a company establishes needs to address the various privacy concerns.

3.  Establish Travel Policies, Especially to H1N1 Hotspots

The CDC currently recommends that all individuals forgo non-essential travel to Mexico.  Employers would be similarly well-served by creating travel restrictions to any other H1N1 hotspots as they may arise.  Whenever possible, try videoconferencing, webcasting, or other technologies instead of travel.  Click here to view the latest map of virus hotspots.

4.  Implement Work-at-Home Protocols 

Employers may want to consider allowing employees who are concerned about infection to work from home.  However, it is important to make clear that any work-from-home determinations will be made on a case-by-case basis.

5.  Certain Companies Should Make Immediate Plans to Obtain Temporary Assistance

Significant employee absences in certain types of organizations may create particularly worrisome situations.  Hospitals, police departments, medical clinics, mental health organizations and other essential public safety organizations should create plans for backup assistance if a large number of employees contract the disease. Have someone gather real-time data on employee absences and come up with some "what-if" scenarios so management can ensure that there are enough employees on duty to adequately ensure the public’s health and safety. 

Note:  Employers should keep in mind that changing an employee’s work schedule or required work hours may implicate certain wage requirements under both federal and state laws.  Prince Lobel employment attorneys can help you identify and comply with those legal obligations.  

6.       Encourage Preventive Measures

According to the CDC,  people infected with the H1N1 virus are potentially contagious as long as they are symptomatic and possibly for up to seven days following the onset of the illness. To help prevent the spread of disease, employers should encourage employees to follow these recommendations:

  • Cover one’s nose and mouth with a tissue when coughing or sneezing, then immediately throw the tissue in the trash.
  • Wash hands often with soap and water, especially after coughing or sneezing; use alcohol-based hand sanitizers.
  • Try to avoid contact with sick people.
  • Stay home from work or school if one begins to experience flu symptoms and limit contact with others. 

Additional Legal Considerations

1.       OSHA and Retaliation/Whistleblower Laws

  • Employers should be aware that Section 5(a)(1) of OSHA, referred to as the General Duty Clause, requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm.  Employers may be cited for violating the General Duty Clause if they do not take reasonable steps to abate or address a recognized hazard.
  • Employers should also be aware of Section 11(c) of OSHA, the anti-retaliation provision, which prohibits retaliation against an employee who exercises OSHA rights.  An employee who refuses to work when there is a "good faith" belief that exposure would put the employee in "imminent" danger of serious injury or death is protected from retaliation.  Such circumstances could include an employee who refuses either to come to work for fear of infection or to travel to an affected area.  An employer will likely be on safe ground if it bases its decisions on current information from the CDC and World Health Organization.

2.       Workers’ Compensation

  • An employee who sustains injury or illness arising out of or in the course of employment is entitled to workers’ compensation coverage, including reasonable and necessary medical care and disability.  Workers’ compensation coverage will likely include employees who become injured or ill while working in the United States, as well as employees who become injured or ill while traveling for business.

3.       ADA, FMLA, etc.

  • The current outbreak, at least in the United States, is confined to mild cases, making it unlikely that an infected individual will be entitled to leave or other benefits under the ADA, FMLA or similar state laws.  However, as the infection progresses – in severity and in scope – employers’ obligations in this respect may change.   

Recommended Resources

Click on any of the links below for up-to-date information about this outbreak:

We encourage you to contact the Employment Law Group at Prince Lobel to discuss the particular impact on your workplace of the H1N1 virus or other contagious diseases.  We can help develop appropriate policies, procedures, and practices for ensuring the health of your employees while minimizing the business disruption.