ON the back of an economic crisis, employers now find themselves grappling with the issues arising from 1124 influenza A (H1N1), more commonly referred to as swine flu. With reports indicating that the Government soon expects 100,000 per day to contract the disease, employers need to review now what preventive measures they can take in the event of an outbreak at their workplace. How should employers deal with staff suffering from flu-like symptoms, and what can be done in relation to the remaining workforce?
Employers need to review their business continuity and contingency plans to ensure they are well prepared for a pandemic and can limit the impact on their business.
What advice should I be giving to employees now?
In light of the concerns arising from swine influenza, employers are reminded of their legal duties to provide a safe system of work and to prevent a foreseeable risk of injury to their employees.
The HSE and Department of Health have issued guidance to employers which include:
■ providing staff with access to the latest government information and advice;
■ prominently displaying signs which discourage staff and visitors with flu-like symptoms from entering the workplace;
■ encouraging staff to follow basic hygiene procedures such as regular hand washing, use of disposable handkerchiefs which are immediately thrown away, and adopting good standards of cleanliness;
■ considering alternatives to direct meetings in order to reduce face-toface interaction, including use of telephone conferencing and homeworking; and
■ suggesting staff who are feeling unwell contact their GP for a proper assessment and diagnosis.
Guidance from the Department of Health can be accessed from www.vwl.co.uk/cms/document/Flu… uidance_080509.pdf.
What if one someone complains of flu-like symptoms?
Swine influenza is contagious and can be transmitted between people. Its symptoms are similar to those of regular human seasonal influenza infection and include fever, fatigue, lack of appetite, coughing and sore throat. As a precaution, employers should consider sending home any employee who suffers from these symptoms, since retaining sick employees in the confines of a workplace will increase the likelihood of further spread of the virus to the workforce.
Employers should also carry out brief investigations to determine whether other staff members who have been in close contact with the sick employee are also at risk or showing symptoms of the flu virus.
What if an employee wants to carry on in the workplace: can he or she be excluded?
If an employer has genuine concerns that an employee is endangering the health of other employees, then it may be a reasonable management instruction to require the employee to remain away from the workplace. Whether an employer has the right to exclude an employee from the workplace may also depend upon the wording of the contract of employment and employers should review their employee contracts and sickness policy.
What if an employee uses swine flu as an excuse to stay away from work?
If an employee is away from work on sick leave then he or she will be required to self-certify the first four days off absence and thereafter will be required to produce a sick note in order to claim statutory sick pay.
An employer may also have additional rules if sick pay is paid. If an employee has obtained a sick note then it is difficult for an employer to go behind this without good reason. If the absence is relatively short, it may be difficult to take any action but the employer should ensure that there is an effective return to work to deter employees from unwarranted sickness absence.
What should I pay the employee?
Employees who are genuinely ill will be entitled to ordinary sick pay, details of which should be set out in the contract of employment, a separate sickness policy or both. After a period of absence of seven days, an employer can obtain a doctor’s certificate to confirm whether or not the employee has caught the flu.
The position may be more difficult to manage where an employer insists that an employee stays away from work because of flu symptoms. If an employee is arguing that he or she can carry on working, is an employer entitled to pay sick pay only? Employers should review their sick policies to ensure that the position is clear.
The Department of Health has warned that a quarter of UK employees could contract swine flu, which could cost the economy £1.5 billion a day. Commercially, employers will want to ensure that business disruption is kept to a minimum, but in light of the contagious nature of the illness, employers are also reminded of their legal duties to provide a safe system of work and prevent a reasonably foreseeable risk of injury to their employees. This means implementing systems which involve curbing the spread of the flu as far as is reasonably possible.
If there is a pandemic and the Government advises everyone to stay at home, then do I still have to pay my employees?
This issue has already generated a lot of debate in the workplace following the adverse weather conditions earlier this year. Some employers refused to pay employees who were unable to attend work and attracted adverse publicity as a result. Employers should set out in a policy now when they are prepared to pay an employee and when they will reserve the right not to pay an employee who does not attend work.
What if employees are unable to get to work because schools, etc., are closed and they cannot arrange alternative child care?
The Health Protection Agency has issued advice on the temporary closure of schools if it is found that a probable or confirmed case of swine flu occurs. Where schools are closed, affected employees may be entitled to time off work for dependents.
An employee is legally entitled to takea“reasonable” amount of time off work to deal with emergencies involving a dependent. A dependent is an employee’s spouse, civil partner, children, parents, anyone who lives in the same household (excluding tenants and lodgers) as the employee, and those who reasonably depend on the employee to make arrangements for the provision of care. An employee is only entitled to time off for dependents in certain situations, including:
■ because of the unexpected disruptions or termination of arrangements for the care of a dependent; or
■ to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during school hours (or hours of any educational establishment).
There is no set answer as to when a situation will be an emergency. Employers should consider each request on an individual basis. Recently, tribunals have made clear that one factor that is particularly relevant to the question of whether or not an employee is entitled to time off for a dependent, is the amount of time between an employee knowing that there is a risk of disruption and the risk becoming fact.
For example, if an employee knew on Monday that his or her child’s school was to temporarily close on Tuesday, a tribunal might decide that that was sufficient time for the employee to make childcare arrangements.
It is more often the case that employees will not know until the day on which the decision is made to close their child’s school. In this situation it is advisable for employers to treat the employee’s absence from work as an emergency, at least until the employee has made suitable childcare arrangements.
All employees are entitled to time off work for dependents regardless of length of service and whether or not they are employed on a full-time or part-time basis. Workers and the self-employed are excluded from the right to time off for dependents. If an employer suspects that this right is being abused, the employee should be dealt with in accordance with the contractual or workplace disciplinary procedure.
Employers are not under a duty to pay employees for time off work for dependents and may therefore need to ensure that any policy dealing with absences caused by a flu pandemic dovetails with a policy dealing with time off for emergencies.
Travel restrictions?
The World Health Organization has not recommended any travel restrictions, and states in its guidance that any constraints will not curb the spread of the virus. The Government has stated that it is not planning to restrict travel within the UK during a pandemic unless it becomes necessary for public health reasons.
Any restrictions which are considered are likely to be on an advisory basis. At present, it is therefore unlikely that employers are able to restrict employees’ travel plans; however, it is not unreasonable for procedures to be put into place in which employees are required to inform their employers where they intend to travel.
Managing the risks
In the event that employees are either suffering or are at risk from pandemic influenza, which will result in a depleted workforce, employers should consider carrying out risk assessments and putting preventive measures in place. This will be of particular importance where employees are sent home to work, or are deployed to unfamiliar tasks and lone remote working at the business premises as a consequence of reduced staff resource due to sickness absence.
Employers should also be aware of their obligations under the Working Time Regulations 1998 if the remaining healthy workforce are expected to cover the duties of those employees absent due to sickness.
Display signs
In addition to promoting working at home, the Department of Health advises employers to prominently display signs which discourage staff and visitors with flu symptoms from entering the workplace.
These signs should also remind people of the signs and symptoms of flu; the importance of self-isolation of individuals with symptoms consistent with an influenza-like illness; and the importance of respiratory etiquette (using disposable tissues, covering the mouth when coughing or both nose and mouth when sneezing) and disciplined hand hygiene.
Considering alternatives to direct meetings and reducing interaction by staggering lunch breaks are also proposed.
Employees should assess, and wherever possible improve and promote, access to effective hand hygiene facilities.
The Department of Health has published a simple framework to help businesses assess the practicality and practicability of possible mitigation measures, in order to reduce the spread of the virus.
Despite the advantages in switching off an air conditioning system for illnesses such as flu, the HSE has advised that employers can continue to use such systems.
