Legal Questions and Answers on the Swine Flu Pandemic

In June, the World Health Organization declared an H1N1 flu pandemic. This means that human-to-human spread has increased and is sustained in the general population. H1N1 is a novel strain of the influenza virus; human beings have little or no immunity to it. Not only did H1N1 rapidly infect Americans, but it also spread throughout the world. According to reports from the Centers for Disease Control and Prevention, 48 states reported widespread influenza activity as of late October. In addition, more than 70 countries have already experienced outbreaks attributed to H1N1, as well as seasonal flu outbreaks.

The H1N1 pandemic creates both danger and opportunity for employers. The danger is obvious: a sick and fearful workforce, days lost to absenteeism, disruption of supply chains, and lost productivity, revenue and profit. But the flip side of danger is opportunity. The pandemic creates an ideal opportunity for management to demonstrate to its workforce that it is proactive and that it cares about its employees.

The swine flu can’t be prevented on a wide scale—it’s here, and it’s all over the world. But you can mitigate its impact on your workforce and, given careful planning, a little bit of luck and some flexibility, your company can and will weather the outbreak. Organizations must take steps now to ensure business continuity, develop succession plans, review and possibly revise human resources policies and—most important—educate employees about the pandemic.

In reviewing their policies, employers must consider how federal and state laws affect pandemic preparedness. These laws include the National Labor Relations Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, Title VII of the Civil Rights Acts of 1964 and 1991, and state workers’ compensation laws.

This article explores some of the issues that have arisen and will arise as employers cope with pandemic flu.

What steps should companies take to minimize their exposure to H1N1?
Pandemic diseases often arrive in waves. While the first wave may be relatively mild in its effect, as the current pandemic appears to be, subsequent waves may be much more virulent. Consider the 1918 Spanish flu, a pandemic that resulted in nearly 20 million deaths worldwide. The first wave was mild; subsequent waves were brutal with very high mortality rates. Employers must institute companywide measures to limit the effects of the pandemic.

First, employers must educate their workforces about H1N1. Education includes furnishing information about the highly contagious nature of the disease, dispelling myths and teaching employees about good hygiene, symptoms, treatment and the company’s efforts to mitigate the impact of the pandemic. Because the flu virus can survive for up to 72 hours on hard surfaces, employers should consider making hand sanitizers available in common areas. Personal protective equipment such as masks should be made available upon request. Although CDC guidance does not require that employers provide personal protective equipment such as facemasks in an occupational setting, the guidance does provide that employees may use them on a voluntary basis.

Second, employers should review their leave policies and consider being flexible with them in order to encourage employees who are sick to stay home. Employers should tell employees not to return to work until they have been fever-free for at least 24 hours (assuming they have a fever—a minority of people with the swine flu don’t have that symptom, according to the CDC). Employers should tell workers that when they return to work, they should continue to practice good respiratory etiquette (by coughing or sneezing into a tissue, or into the crook of the arm if no tissue is available) and good hand hygiene. They also should avoid close contact with people they know to be at increased risk of influenza-related complications. Health care workers should stay home from work for seven days from the onset of the disease. Third, employers should encourage flexible work schedules, staggered work shifts or telecommuting whenever possible.

Should employers mandate swine flu vaccinations?
The vaccine has been in short supply and generally not available for use at work sites, so this question has been moot so far. But it may arise as the vaccine supply increases. To date, only one jurisdiction has mandated that health care workers be vaccinated against both seasonal and swine flu. The New York State Health Commissioner issued a regulation mandating annual flu vaccinations for health care workers who have direct contact with patients. In mid-October, a New York court temporarily enjoined implementation of the regulation, and the state then withdrew the regulation. In Washington state, a unionized employer unilaterally implemented a rule requiring that its employees be vaccinated. The employees filed a grievance. The arbitrator held that the employer violated the collective bargaining agreement when it implemented the rule mandating the vaccination.

For a nonunion employer, there may be no legal impediment to mandating a vaccination. With the exception of employees who might have a medical condition for which a vaccination would be contraindicated, or a religious objection to being vaccinated, an employer may lawfully require its employees to be vaccinated, provided this is done in a nondiscriminatory manner. Mandating vaccinations, however, may not be good for employee relations. What is lawful is often not wise from an employee relations standpoint. In a recent non-scientific poll, this author found that out of 120 respondents, only one employer was mandating that its employees be vaccinated.

If an employer thinks an employee is sick, can the employer ask if the employee has flu-like symptoms?
The short answer, according to the EEOC, is yes:

“ADA-covered employers may ask … employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

“If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.”

The larger issue is that the H1N1 pandemic implicates both OSHA’s “general duty” clause and the ADA. The general duty clause requires that employers provide employees with a workplace free from recognized hazards that cause or are likely to cause death or serious injury. The ADA regulates how and when employers can seek health- or disability-related information from applicants or incumbents. This raises the question of how an employer balances the competing interests of OSHA’s general duty clause without running afoul of the ADA’s limitations on asking employees about their health.

Is seasonal flu or swine flu considered to be an ADA-covered disability?
While seasonal flu has not been deemed to be an ADA-covered disability unless there have been residual and long-lasting effects, the January 1, 2009, amendments to the ADA make it much easier for employees to be deemed “disabled” under the ADA. The amendments and the EEOC’s implementing regulations mandate that employers focus more on accommodation issues and take a common-sense approach to whether a particular impairment is a disability or not.

In mid-October, the Congressional Research Service published a paper, “The Americans With Disabilities Act (ADA): Employment Issues and the 2009 Influenza Pandemic,” concluding that currently an individual infected with H1N1 would most likely not be considered disabled under the ADA. The paper, however, went on to state: “[I]f the H1N1 virus were to mutate to cause more severe illness, such an infection may be considered a disability.”

While there is no case law on point, one can foresee the possibility that under the ADA, swine flu or its effects may be a disability. In that case, the ADA’s accommodations provisions would be triggered. Moreover, employers must still be careful about questioning incumbent employees about their medical conditions. Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations depends on what stage of the employment process the employee is in. For incumbent employees, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.