October 19, 2009 | last updated May 26, 2012 8:54 am

Preparing For Swine Flu | D. Charles Stohler, Partner, Carmody & Torrance LLP

D. Charles Stohler

What happens if employees refuse to or cannot work because of the flu? If an employee has run out of sick days or a company doesn't have them, can the employee be dismissed?

Both the Federal Occupational Safety and Health Act (OSHA) and Connecticut law protect employees from disciplinary action if an employee has a reasonable basis to refuse to work when confronted with a hazardous work condition. In addition, the National Labor Relations Act protects groups of employees who might refuse to work because of safety conditions.

There is no law that requires employers to provide paid sick leave, but employers should use caution before dismissing employees who are out because of the H1N1 virus. Other employment statutes, such as the Americans with Disabilities Act and the Connecticut Fair Employment Practices Act, provide protection to employees against discipline because of a covered disability or illness. Also, employees of larger companies of 50 or more employees may have rights to take unpaid leave when they or their dependents have a "serious health condition" under the under federal and/or Connecticut Family and Medical Leave Acts (FMLA). Employers should interpret their sick policies liberally depending on the how severely the H1N1 pandemic hits their businesses.

What steps should employers be taking now to prepare for the flu in terms of legal and practical issues?

First and foremost, employers should have a plan and address the situation now. The goal is to keep employees from getting sick, and to return them to work as soon as possible after they are fit to return to work.

In addition to Business Continuity and Operational Plans, employers should address the following human resources and employment issues: 1) Health and safety issues, such as providing sanitizers and supplies, disinfectant wipes, time off for vaccinations, and "social distancing;" 2) Communication plans on what the organization is doing both before and during any outbreaks, as well as training supervisors and human resources personnel; 3) Pay and benefit policy adjustments, such as modifying attendance policies, reviewing insurance coverage, and allowing employees to work offsite; 4) Staffing and backup for critical positions; 5) Employee relations, including training on what to do when an employee refuses to work; and 6) Technology such as phone and videoconferencing and telecommuting options.

How should employers balance business and customer demands with the reality that many of their employees will be out?

The key priorities for employers should be keeping employees from getting sick so that they can keep working. If employees do get the flu, the goal should be to get them back to work as soon as possible after they are fit to return to work. Employers should communicate what their plan is, monitor the news and be flexible and liberal in adjusting their pay and benefit policies. Employers also should develop backup plans for essential workers and contingent staffing options.

What can an employer do in the case of an employee who exhibits flu symptoms but keeps on working (again because of no sick days or fear of losing a job)? Can an employee be sent home?

Although there are several legal concerns, an employer can send employees home or require them to stay home.

The justification is the protection of the other employees and the requirement under OSHA to provide a safe work place. Employers should consult their own policies and apply them liberally given the severity of the situation considering the impact on their businesses.

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