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Employers Should Prepare in Case Swine Flu Returns this Fall

A swine flu pandemic was a no-show this past spring, but there’s no guarantee it won’t come roaring back when the regular flu season gets under way this fall. Swine flu (also called the H1N1 virus) should be taken seriously because this particular strain hasn’t been seen before, so people haven’t built up natural immunity. It’s contagious, has spread quickly around the world since it originated in Mexico, and is likely to mutate in the next few months. No one knows how the virus will mutate or how dangerous the new version will be, but we do know this: Now is the time to plan to deal with a flu pandemic should the need arise.

Audio Conference: Preparing for the H1N1 Flu Virus: How to Legally Protect Your Employees AND Your Business

Pandemic plans and the ADA
The Equal Employment Opportunity Commission (EEOC) has issued guidance, available at, on staying within the requirements of the Americans with Disabilities Act (ADA) while developing plans to deal with a possible swine flu pandemic. The ADA forbids discriminating against qualified persons with disabilities and limits the timing and type of health-related questions employers can ask employees and job applicants. The guidance includes an ADA-compliant, anonymous employee survey that employers can send out before a flu outbreak. The survey describes several situations — both disability-related and otherwise — in which an employee might need to take time off from work during a pandemic and asks the employee to simply say whether any situation would apply to him, without specifying the situation.

The guidance also clarifies that employers may require entering employees to have a medical examination to determine exposure to the flu virus after making a conditional job offer but before the person starts working so long as all entering employees in the same job category must take the exam. Employers also may require employees to adopt infection-control practices such as regular hand washing and require them to wear personal protective gear, subject to the right to reasonable accommodation. Employers also may encourage or require employees to telecommute as an infection-control strategy.

Other legal considerations during a pandemic flu outbreak
Remember that the Family and Medical Leave Act (FMLA) entitles qualified employees of covered employers to take up to 12 weeks of unpaid leave in a 12-month period to care for their own or a family member’s serious health condition. The flu can be a serious health condition if it meets FMLA definitions, meaning, among other things, that the employee’s FMLA-covered absences for flu can’t be used against him under his employer’s disciplinary and attendance rules.

The Occupational Safety and Health Act (OSH Act) also may apply through its general duty clause, which requires covered employers to provide employees with a safe workplace that is free from recognized hazards. Several large labor unions, through the AFL-CIO, have urged the Occupational Safety and Health Administration (OSHA) to state formally that exposure to the H1N1 virus in health care settings and emergency response activities poses a recognized hazard to workers and requires protective measures. OSHA has issued guidance on preparing workplaces for an influenza pandemic, available at In addition, the National Labor Relations Act may protect employees who act together to improve flu-related health conditions in the workplace or on the job, even if they aren’t unionized.

State-by-state comparison of 50 employment laws in 50 states, including privacy, discrimination, and wage and hour issues

Practical issues for employers
The Department of Health and Human Services offers a very useful website,, with industry-specific checklists to use in developing a pandemic plan. There’s also a two-page general business checklist. In addition, the site includes frequently asked questions covering topics such as sending workers home, refusal to work, return to work, and even quarantines. The site also directs readers to the Centers for Disease Control and Prevention’s H1N1 website for the latest information on swine flu in the United States and to the World Health Organization for information on the international situation.

Subscribers to any of the 50 Employment Law Letter newsletters can access a sample policy on life-threatening, contagious, and/or debilitating illness

In conclusion
Even if H1N1 fizzles out with nary a symptom this fall, it’s better to be safe than sorry given the havoc that a mass outbreak of the flu could cause in your organization. Even if you don’t use your plans this time, they’ll surely be valuable at some time in the future, and that day may come sooner than you think.

Workplace Catastrophes: An Employer’s Guide to Workplace Violence, Terrorism, and Natural Disasters — updated for 2009