Since my first post on H1N1 Influenza (a.k.a. Swine Flu, 2009 Flu, Mexican Flu — or whatever else the CDC or WHO is now calling it — [see UPDATE below on the preferred usage of the term H1N1]) on Sunday, nearly every media outlet has eitherhyped or overhyped the crisis. I’ve waited until week’s end to try to see if we could get some proper perspective on things. 

As of this afternoon,there are still no confirmed cases of H1N1 flu in ConnFrom the Public Health Image Library - CDC - 1976 Swine Flu outbreakecticut., but I’m not sure if we have yet gotten the perspective in focus yet, if the school closings this week are any guide.  

Some fellow bloggers have tried to provide some context in an admirable fashion. The Ohio Employer’s Law Blog summarized each of those blogs here, as follows:

[The big] story of the week is the swine flu. I’ve already covered this issue, as have some of my fellow bloggers: Michael Moore at the Pennsylvania Labor & Employment Blog, Catherine Barbieri at the FMLA Blog, Michael Haberman’s HR Observations, HR World, The Word on Employment Law with John Phillips, and Dan Schwartz at the Connecticut Employment Law Blog (who I believe was first in bringing this issue to employers’ attention). CCH also has an excellent resource page covering this issue.

But where does that leave most employers. If the traffic to this blog is any indication — still scratching their heads. So, let me try to put some of the issues in a slightly different framework for employers to think about. 

1.   Preparation & Communication

While large corporations have likely had time over the last years to develop a crisis-management guideline to deal with natural disasters or pandemics, smaller companies haven’t had that luxury. The CDC checklists should be required reading for most employers by now with notices available on their website as well.  Employers should use their bully pulpit to convey accurate information to their workforce along with preventative measures that employees can implement on their own.  For employee questions, this FAQ is a great place to start. 

But beyond that, employers should think about (though not implement as of yet) what it’s plans may be if this outbreak becomes more widespread and more serious.  Will you allow for telecommuting? Is your infrastructure set up so that you have the capability TO telecommute? Will you implement special pandemic flu leave policies to prevent employees from infecting others in the workplace?

You don’t need answers to all these questions yet but you should start to anticipate what those questions may be. 

2.   Addressing Day-To-Day Issues — The sick employee or the closed school

If and when the H1N1 Flu becomes more prevalent in the community, specific employers may be impacted directly.  For school systems, for example, the CDC has released guidance this morning on how schools should address an outbreak.  The CDC has already released guidance as to how a community should react to such an outbreak.

Employers may have more practical considerations though that they will need to deal with. For example, if an employee’s child becomes ill, can that employee take FMLA leave? (Probably, though review your policies.) If the employee is sick, can you ask that employee to stay home or work from home during the length of the illness (Maybe but again, check your policies.)

But a tougher question comes up when a school is closed. In that situation, parents may need to stay home or make arrangements to care for a healthy child. What then? John Phillips has some excellent suggestions here, which can be summed up in one phrase: Be sensible and flexible:

I’d be reluctant to fire an employee who stays home with a child whose school has closed because of swine flu. If you’re concerned about setting a bad precedent, I wouldn’t be too concerned. After all, a national health emergency has been declared. I’d be more concerned about bad publicity or a creative legal theory under which the employee might sue you.

The Job Accommodation Network has also just released this guidance on considering the needs of employees during a flu outbreak

3.   Providing a Reasonably Safe Workplace

Perhaps overlooked during most times, OSHA laws require employers to provide reasonably safe workplaces. What that will mean will depend on the type of workplace you have.   Employers whose employees have a significant amount of interaction with the public may have different obligations from those employers whose employees sit in a cubicle for eight hours a day without much interaction with fellow employees, much less the public.

OSHA already has guidance on how a workforce can deal with a pandemic flu. While this contemplates a flu strain more virulent than the current strain appears to be, the documents can give employers a starting point as to the areas that they may want to address should the flu outbreak start impacting their workfoce. 

As a result, the following guidance has been set up by the government as a starting point on what employees can do to keep the workplace safe:

  • Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it;
  • Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hands cleaners are also effective.;
  • Avoid touching your eyes, nose or mouth. Germs spread that way;
  • Stay home if you get sick. CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them;
  • Follow public health advice regarding school closures, avoiding crowds and other social distancing measures;
  • Develop a family emergency plan as a precaution. This should include storing a supply of food, medicines, facemasks, alcohol-based hand rubs and other essential supplies.  

The guidance on this flu outbreak continues to change (and there are a number of variations on the suggestions at this point,as this summary provides.) .  Another fellow attorney has suggested that employers ask the questions: What must I do? What can I do? Those are good questions.

But at this stage, I think that the question that most employers want answered is "What SHOULD I do?" For that, calm and deliberate thought and preparation — not panic — will help ultimately help employers make informed decisions.


(Photos courtesy of CDC’s Public Health Image Library; Photo 1: 1976 Swine Flu Vaccination Program; Photo 2: Lab reviewing pandemic flu samples)

UPDATE: The term "Mexican Flu", which was originally used by health professionals to describe the first country where the flu was diagnosed — as was done with the "Hong Kong Flu" or "Spanish Flu" — is no longer being used as the preferred term. It is obviously now being called H1N1 flu (or even still, Swine Flu).