|
|||
|
|
|
||||||
|
Protecting the Workplace
Employers need to protect their workplaces from an outbreak of swine flu, but they should not overreact, experts say. Putting in reasonable precautions and making sure their pandemic plan is in place are necessary. Mandating vaccines is not, they say.
Better safe than sorry is the mantra as employers gear up for the anticipated swine flu pandemic of 2009-2010 winter season. From installing hand sanitizers to forcing sick workers to go home, various precautions are being weighed by employers to prevent the spread of the dreaded H1N1(swine influenza) virus. On one hand, the seasonal flu comes and goes every year, and many areas haven't yet seen an outbreak of swine flu. On the other, swine flu, which was declared a worldwide pandemic last June, is attacking, and killing, far more young adults than elderly, who are usually hit hard by the flu. The best advice, say experts, is to take necessary precautions. At the same time, employers don't want to overreact. "The government walks [a fine] line in terms of informing the population without scaring them. ... Sometimes there's doom and gloom and it never materializes," says Linda Newman, a nurse and attorney with SmithAmundsen in Chicago. "I don't think people need to panic about it, but they need to be smart about it," she says. "You need to put certain precautions in place." Managers rely on workers' using common sense and staying home when they have the flu. In the case of swine flu, when no one has immunity, companies must consider making it mandatory to stay home. But what does an employer do when workers don't want to use up sick leave or don't have sick leave? Or when workers have the heroic urge to soldier on, even if they're sick? Officials in Pima County, the second largest county in Arizona, bit the bullet and adopted a policy requiring managers to send home workers with flu symptoms, including a temperature of 100.4 degrees Fahrenheit. The policy, which was approved by the county workers' unions, requires sick employees to stay home at least 24 hours after they are free of fever. Employees can also use sick leave to care for a family member with H1N1 virus. "Sending employees home is controversial," says Newman, although she says that most employment attorneys agree companies have "the right to send them home." And that is the recommendation of the Centers for Disease Control and Prevention, she says. While HR leaders can't force an employee to take his or her temperature, a manager can ask about obvious symptoms, such as high fever, coughing or sneezing, says Erika Royal, an attorney with Holland & Knight in Fort Lauderdale, Fla., who agrees employers can insist workers go home. You can also require an employee go to the doctor if you believe he or she is a direct threat to the company's ability to provide a safe work environment as required by the Occupational Safety and Health Administration, Royal says, suggesting that the company offer to pay for the time off and even the exam. Identifying flu symptoms is not a violation of the Americans for Disabilities Act, because the flu is a transient medical condition, she says. However, a manager cannot ask employees if they have a medical condition that would put them at high risk for swine flu, such as asthma, cancer, organ transplant or HIV. "You can't ask if they have a compromised immune system, but you can ask if they are coughing," Royal says. If an employee refuses to come to work because other workers, or customers, may have swine flu, they can be docked and disciplined, Royal says. "[But first] try to be understanding and educate these workers [about] the things you are doing to keep them safe," Royal says. Only 8 percent of 763 employees randomly surveyed by ComPsych Corp., an employee-assistance provider based in Chicago, say they are more likely to stay home or keep family members home if they have [normal] flu symptoms. And 29 percent say their habits have not changed with the advent of swine flu. "That's a little scary," says Michele Dodds, ComPsych's vice president for wellness, "because one of the main [CDC] guidelines is to encourage [employees], when in a contagious state, to stay out of the workplace." On the positive side, 40 percent are more likely to wash hands and avoid touching people or surfaces. Helping employees comply with that is among the main steps the CDC and local health officials advise: Provide hand sanitizers in the office and remind workers to cover their noses and mouths when sneezing or coughing. Some employers are also considering voluntary or mandatory vaccinations. Many workplaces have long offered seasonal flu vaccines, but this year, for the first time, some healthcare facilities -- such as Loyola University Health System in Maywood, Ill., and Rush University Medical Center in Chicago -- are requiring all employees get the seasonal flu vaccine annually as a condition of employment. Employees with religious and medical grounds are exempt. Rush is also requiring employees, on a priority basis, to get the swine flu vaccine. In New York, however, when the state Health Commissioner Richard Daines ordered all state workers, on August 13, to be inoculated with both swine flu and seasonal flu vaccines, the New York State Public Employees Federation, the New York State United Teachers Union, and several nurses filed suit. They questioned the effectiveness and safety of the H1N1 vaccine. On Oct. 30, a New York State Supreme Court judge issued a temporary restraining order in one of the suits, halting implementation of the policy. The New York situation is not an employee/employer question, says attorney John Myers at Eckert Seamans Cherin & Mellott in Pittsburgh, because the state health department is a regulatory agency issuing an order involving healthcare workers. It is not a private employer. "Because it is a public regulation, it can be evaluated as to whether it is constitutional because it's an order by the government," Myers says. In the average workplace, "the argument the employee would make is, it's a personal decision [and] invasion-of-privacy arguments." For now, requiring swine flu vaccinations would be a "gross overreaction," unless you are a hospital or nursing type of facility, Myers says, but he notes that "a lot of this discussion could change if the infection rate becomes greater, if it turns out more deadly." Meanwhile, the swine flu vaccine itself is under legal fire. A lawsuit pending in the U.S. District Court for the District of Columbia is attempting to force the U.S. Food and Drug Administration to withdraw or suspend the four 2009-H1N1-A influenza vaccine license modification approvals of Sept. 15. The suit charges that more testing is needed to determine the vaccine's safety and efficacy, and says the pandemic was "arbitrarily and capriciously" declared. The consensus is that the current vaccine is safe, stresses Dr. Myles Druckman, a Los Angeles-based vice president with International SOS, which offers medical and security solutions. The H1N1 vaccine, he says, has the same structure as the seasonal flu vaccine, and is completely different from the controversial swine flu vaccine of 1976, which caused cases of Guillain-Barre syndrome. "If we [were] seeing a lot more severe outbreak [of swine flu], people would be less sensitive to these issues," he says. Experts also advise organizations to make sure they have a pandemic plan in place. "The reality is every company should have a pandemic plan in place anyway," says Brett Gorovsky, an employment law analyst with CCH in River Woods, Ill., a provider of tax and business-law information. The plan should involve identifying a pandemic coordinator or team, possibly with HR at the helm; identifying key employees and work processes that need to stay open regardless of absences; and establishing an emergency communications plan for employees and customers, he says. Many larger companies learned a lesson when they were unprepared for the SARS outbreak (2002 to 2004), says Druckman. "[Since then], companies have looked at their community -- what things can we do to reduce entrance of the virus, [reduce] the number who get sick, delay the onset, maintain business operations through the wave, and recover quickly," he says. If swine flu does affect the office, employers can offer work options to encourage people to stay home, such as telecommuting, shift work, or flexible or staggered time, Newman says. To predict potential absenteeism in a swine flu outbreak, Royal says, a survey prepared by the U.S. Equal Employment Opportunity Commission may help. The ADA-compliant pre-pandemic survey can be given to workers before the flu hits. It identifies those workers who are at high risk, either because of medical conditions or special needs, and may need to stay home during an epidemic. October 27, 2009 Copyright 2009© LRP Publications |
||||||
Print
Email
Write to the Editor
Reprints
|
||||
|
||||
|
||||
|
© Copyright 2010 LRP Publications. All rights reserved.
|
||||