Flu bug brings new headaches to employers

05/07/09

The swine flu is the top story on most news sites, as new cases are being confirmed around the world. High-density locations such as offices, schools, airplanes and nursing homes are considered higher risk areas for spreading the flu. As an employer, what are your rights and responsibilities when it comes to protecting your workforce from contagious diseases?

Is influenza dangerous?

The risk of catching the flu at work is nothing new. Most flu viruses come and go with little long term impact on employees. But what if a specific strain of flu posed a hazard to your employees' long term health? What if it were potentially fatal?

Influenza, commonly known as the flu, can be a fatal illness. The World Health Organization (WHO) estimates that over a quarter of a million people worldwide die each year from the flu or complications of the flu, with some 10,000 flu-related fatalities in the United States annually.

Contagious diseases at work

Any area with high population density is considered a higher risk location for contagious disease transmission. This includes schools, airports, nursing homes, dormitories and workplaces.

As an employer, you want to limit the risk to your staff and customers. But before you create an official policy or revise an existing one, here are some important legal and ethical issues you need to consider.

The rights of employees

• An employer cannot legally require employees to stay home from work simply because of where they have traveled if they are not showing symptoms of illness.
• Employees cannot be forced to stay home because of the persons with whom they may have come in contact if they are not showing symptoms of an illness.
• It is acceptable to offer an exposed but not sick employee the option of working from home, but the choice should be left up to the employee and should not result in loss of pay, status or a lesser performance evaluation.
• If an employee is showing symptoms of a contagious illness, an employer has the right to make the person leave the workplace.
• You also may require a medical certification before an employee who displayed symptoms of a communicable illness is permitted to return to work.
• Employees should have access to written policies that detail your company’s rules about coming to work while ill and returning to work after an illness.

Discrimination issues

The media may focus on one country as the origin of a given infection, but if employers use that information to exclude, fire or refuse to hire individuals because they are from a certain country or ethnic group, they could face a legal suit for discrimination. The Civil Rights Act of 1964 prohibits workplace discrimination based on religion, national origin, race, color, or sex, and employers are bound by those terms.

Safety obligations and liability for employee exposure

Employers have a legal obligation to provide a safe and healthy workplace for employees. OSHA, the federal Occupational Safety and Health Act, requires companies to provide a reasonable level of workplace safety and wellness, as defined by OSHA regulations.

Any employees harmed as a result of negligent hiring, retention or employment policies may have recourse to sue for damages. In addition, OSHA fines could also result from negligent health and wellness practices. In the case of infectious diseases, this could mean an employer who does not establish clear policies for dealing with exposure to communicable illnesses at work could be liable for employees who become sick as a result.

Establishing a safe workplace policy

Employers need to review their employee handbook to make sure there is a clear procedure for dealing with sick employees. Make sure it defines exactly when and how an employee can be sent home, what kind of leave hours are to be used, and how employees can certify that they can safely return to work.

• Offer disease prevention training, including instruction on identifying disease symptoms, hand washing procedures, and biohazard clean up techniques.
• Provide hand-sanitizing stations or supply sanitizing hand soap in restrooms for employees.
• Offer clear and accurate information about the symptoms of any currently widespread illnesses that may affect your workforce. Media coverage may create false fears or even panic, so balanced accurate information is necessary to help employees make rational choices about their health.
• Create an official travel policy that will address postponing or rescheduling travel in times of heightened health concerns.
• Make sure your entire staff is aware of the possible legal consequences for ethnic or racial discrimination.