moquitobYour industry’s major conference is set for Miami Beach – the land of sun, beaches, and, now it seems, mosquitoes carrying the Zika virus.

Your key sales employee — the one who was setting up your booth for the conference — has come to you expressing concern about the Zika virus.  Perhaps she’s pregnant. Or perhaps he’s married with a pregnant wife expecting at home.

Now what?

The answers are still developing.  The Department of Labor’s OSHA division advises that:

Employers should consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.

The CDC has also issued advisories for the Miami-Dade area including that:

  • Pregnant women should not travel to these areas.
  • Pregnant women and their partners living in or traveling to these areas should follow steps to prevent mosquito bites.
  • Women and men who live in or traveled to these areas and who have a pregnant sex partner should use condoms or other barriers to prevent infection every time they have sex or not have sex during the pregnancy.

What can employers do?

First off, employers should not make any blanket decisions for pregnant employees about whether they should travel.  Rather, employers should educate all employees (including any pregnant ones) about the risks associated with the Zika virus.  If an employee refuses to travel, employers should evaluate the situation on a case-by-case basis.

But beyond that and considering that the transmission of the Zika Virus in Florida is still mainly with mosquitoes, employers can advise employees to use insect repellent and to reduce unnecessary outdoor work.

This is still a fluid situation but already there are already many other law blog posts on the subject — nearly all of which are repeating the same information. Any one of them can also be reviewed as well.

Employers should not overreact, but rather recall the lessons learned from prior disease outbreaks like H1N1 back in 2009.  Some flexibility in the short term is going to be required.

As the temperature starts to dip this week and our thoughts start turning from fall to winter, so starts slow climb up the absenteeism ladder.

Around many workplaces, flu shot clinics are starting to pop up.  Not surprisingly, studies show that flu shots reduce the rate of absenteeism.  (Employees who get vaccinated get sick less — go figure!)

The Connecticut Department of Public Health has a whole website devoted to employers who wish to run a flu clinic. And the CDC has lots of information like the button below.

Learn about Who Needs A Flu Vaccine.
http://www.cdc.gov/flu/protect/whoshouldvax.htm

But can an employer mandate that employees get a flu shot? Around Connecticut, numerous healthcare institutions started instituting mandatory vaccinations for their workers…and the local press made it a big issue.

Lost in that so-called debate, however, was the clear-cut guidance that came out from the Commission on Human Rights and Opportunities.  In an article last December, the CHRO said unequivocally that there was no issue with mandatory flu shots.

Charles Krich, principal attorney for the Connecticut Commission on Human Rights and Opportunities, says this corporate policy [of mandatory flu shots] does not violate constitutional rights. It also does not qualify as discrimination.

“About a hundred years ago, the Supreme Court said the state absolutely has the right to require vaccinations of people to protect the public health,” Krich explained.

Despite the undisputed public health benefits to such a policy, State Senator Joe Markley introduced a bill earlier this year into the Connecticut General Assembly that would ban such mandated vaccinations.  Thankfully, the bill went nowhere. 

Employers should, however, still be mindful of federal laws that mandate some accomodation of an employee’s religious beliefs and may, on a case-by-case basis, consider some flexibility.

Many hospitals have created a system to analyze requests for exceptions to the policy and created an exception as follows:  “Those who cannot receive the flu vaccine, whether for religious or medical reasons, will be required to properly wear a protective surgical mask over their mouth and nose when within 6 feet of any patient and when entering a patient room during the influenza season.”

Employers with unions and collective bargaining agreements should also be mindful that some have argued that mandatory flu shots should be a bargained-for term of employer. Last year, the NLRB ruled that a hospital did not violate the federal labor laws when instituting a mandatory policy over the objections of the nurses’ union.  But that decision relied on a broad “management rights” provision so employers should have their own situation reviewed by their labor counsel.

 

Following up on my earlier post, Senator Christopher Dodd (D-Conn.) announced this week his plans to introduce emergency legislation that will guarantee paid sick days for those who are infected by the H1N1 virus.

In a statement, Sen. Dodd indicated that this issue required immediate action:

“This isn’t just a workers’ rights issue – it’s a public health emergency. Families shouldn’t have to choose between staying healthy and making ends meet,” said Dodd. “But if staying home means you don’t get paid, that’s an impossibility, especially for families struggling to make ends meet in this tough economy.”

 

“Workers should have paid sick leave as a matter of basic fairness,” Dodd continued. “But now sick leave is a matter of keeping Americans safe from this pandemic – and from the next one, whatever it may be.”

The proposal is likely to mirror similar measures introduced in the House — either on an emergency or regular basis — by several Representatives including Connecticut’s Rosa DeLauro who introduced the Healthy Families Act back in May

As a I said before, there are legitimate arguments both before and against paid sick leave bills in general.

But it seems a dangerous road to go down to single out the H1N1 flu as the need for emergency legislation on the subject.  After all, the mortality rate for adults for the swine flu appears to be no higher than for seasonal flu. There are also illnesses that are far more severe that would be left out of such a measure; why should we single out H1N1 — particularly because we might be starting to plateau on the numbers of cases in this wave? 

The paid sick leave measure can and should be debated on its own merits; tying it to an illness only seems to make an important measure feel like a political move.

Way way back on April 28th of this year, I wrote a simple post entitled "Paid Sick Leave Bill Moves Forward; Will Swine Flu Be Tipping Point"?

Back then, the Connecticut General Assembly was debating a Paid Sick Leave bill and one of the groups supporting the measure used the swine flu (H1N1) outbreak as a reason why the measure should pass. Ultimately it did not, but I discussed why using that particular illness as a reason for a paid sick leave bill would be a bad idea. (And, it should be noted, I pointed out that there were a number of good arguments why it should be passed; H1N1, however, wasn’t one of them.) 

Flash forward now over six months later and now some members of Congress are again raising the swine flu as the basis for a measure for paid sick leave.

 Rep. George Miller,  Chair of the House Committee on Education and Labor and others introduced emergency temporary legislation yesterday that would guarantee five paid sick days to any employee sent home or directed to stay home by an employer because of a contagious illness. (H/T Workplace Prof Blog)

The bill is still a few weeks away from a hearing and consideration but expect to hear more about this in the upcoming weeks.  Again, there are pros and cons to a paid sick leave bill, but for the same reasons I’ve outlined before, using the H1N! flu as a reason for the measure now shouldn’t be one of them.  What about all the people who have suffered for years with just a seasonal flu, for example.

Of course, when the CDC is putting out public service announcements that encourage employees to stay home if they are sick, a measure like this is not unexpected. 

H1N1 (Swine Flu)

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With the swine (H1N1) flu vaccine production running slower than anticipated, the hope that workplaces would avoid the full effects of a pandemic is slowly diminishing.   Interesting, Connecticut is one of just 9 states that are not reporting a widespread swine flu outbreak (perhaps because the first wave hit the state fairly hard).  

Add This To Your Web Site!

I’ve previously discussed this before, but there are some useful resources out there, several of which have been recently updated. Here are a few of the resources that I can recommend to continue staying on top of this subject:

Overwhelmed? Well, that’s natural. But there are some steps that employers can still take to get your workplace ready for this flu season.

  • Update (or create) a Business Continuity Policy with specific provisions for H1N1 flu.
  • Encourage employees to get flu shots (both seasonal and H1N1) as soon as possible. To the extent that you offer health insurance to employees, determine if those shots are covered under the appropriate plans. And consider offering flu shot clinics if you have the resources. 
  • Clarify what your absence and illness policies will be.  Consider having flexibility in this situation if you can to encourage employees who are sick (or who have someone that is sick in their household) to stay home.
  • Make sure your infrastructure can handle an increased telecommuting presence if need be.
  • Stay updated on the guidance.

 

With a new wave of swine flu (H1N1) predicted to hit in the upcoming weeks. the Centers for Disease Control released new updated guidance yesterday for employers with recommended actions for businesses to take. (H/T Ohio Employer’s Law Blog)

The guidance can be found in two documents: 

At the outset, the CDC acknowledges that trying to balance various interests will be difficult for businesses, depending on the severity of the flu outbreak:

All employers must balance a variety of objectives when determining how best to decrease the spread of influenza and lower the impact of influenza in the workplace. They should consider and communicate their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at increased risk of influenza related complications from getting infected with influenza, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.

The guidance then has a variety of action steps for employers to take right now. Some of these are not new; indeed, if you’ve been following this topic you’ll see that some of the suggestions (such as an influenza pandemic plan) have been suggested before. But now that the context of the flu outbreak can be seen, these recommendations may make sense a little more.

  • Review or establish a flexible influenza pandemic plan and involve your employees in developing and reviewing your plan;
  • Conduct a focused discussion or exercise using your plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
  • Have an understanding of your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter.
  • Engage state and local health department to confirm channels of communication and methods for dissemination of local outbreak information;
  • Allow sick workers to stay home without fear of losing their jobs;
  • Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close;
  • Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them;
  • Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts; and
  • Add a “widget” or “button” to your company Web page or employee Web sites so employees can access the latest information on influenza: www.cdc.gov/widgets/ and www.cdc.gov/SocialMedia/Campaigns/H1N1/buttons.html

The guidance has much more information in detailed fashion about steps to take when the illnesses start occurring at work (and suggestions if the pandemic increases in severity).  It is well worth reading to stay up-to-date on this ever changing area.

(For local reaction to the CDC’s new guidance and what employers are doing in Connecticut, the Hartford Courant has this report.)

 

The Washington Post has a sobering article out this morning about the expected return of swine flu (H1N1) virus in the upcoming weeks.  Indeed, the experts cited in the article basically state that it’s not a matter of "if", but "when" this second wave will hit.

While flu viruses are notoriously capricious, making any firm predictions impossible, a new round could hit the Northern Hemisphere within weeks and lead to major disruptions in schools, workplaces and hospitals, according to U.S. and international health officials.

"The virus is still around and ready to explode," said William Schaffner, an influenza expert at the Vanderbilt University School of Medicine who advises federal health officials. "We’re potentially looking at a very big mess."

And for those employers awaiting the development of a vaccine, the article suggests that the first batches may not be ready until the flu’s expected peak in October.

The first batches of swine flu vaccine are not expected to become available until mid-October, assuming studies indicate it is safe and effective. And officials have yet to answer many key questions, including how many doses will be needed. If it is two, as many suspect, it could take at least five weeks after the first shot before vaccinated people are fully protected.

For employers, thus, now is the time to review your contingency planning and finalize your policies on how you will address things such as a sick person at the workplace or mass absences for a period of time.

Late last week, the CDC released updated guidance for businesses of all types regarding the H1N1 virus. While the guidance isn’t revolutionary, it does provide some specific steps for employers to take.  Among them: 

  • Encourage sick workers to stay home and away from the workplace, and provide flexible leave policies.
  • Encourage infection control practices in the workplace by displaying posters that address and remind workers about proper hand washing, respiratory hygiene, and cough etiquette. These posters can be found on the Germ Stopper: Posters and Other Materials page.
  • Provide written guidance (email, etc.) on novel influenza A (H1N1) flu appropriate for the language and literacy levels of everyone in the workplace. Employers should work closely with local and state public health officials to ensure they are providing the most appropriate and up-to-date information (e.g., the CDC H1N1 Flu website).
  • Provide sufficient facilities for hand washing and alcohol-based (at least 60%) hand sanitizers (or wipes) in common workplace areas such as lobbies, corridors, and restrooms.

The next few months may be challenging, but preparation — not panic – is key to this next wave of flu that is predicted.

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

Continue Reading Update: H1N1 Influenza (Swine Flu) – What Employers Need to Know Now to Keep Their Workplace Sane and Safe