The United States faces a swine flu outbreak that has caused the government to declare a public health emergency.

The jury is still out on whether the swine flu outbreak will become a widespread pandemic. However, it’s not too soon for employers to start preparing to prevent influenza spread at work and consider what to do if the illness reaches pandemic status.

If enough people become infected, it could seriously affect many employers’ operations.

You should begin pandemic planning now. Properly implemented, it can help limit the flu’s impact on employee health—and the economic health of your organization.

A host of possible problems

It’s usually difficult to plan for a crisis and respond to it thoughtfully while it’s occurring. That’s why planning now is so important. You’ll be able to act quickly should the need arise.

Because each business is unique, you must customize your pandemic plan to your particular workforce and business-continuity needs. However, several practical issues may affect almost every employer.

• Attendance could nosedive. Some employees may be unable to work because they are sick. Others may stay away from work because they fear becoming infected.
• The workplace might become contagious. Ill employees may insist on coming to work—because they need the income—even if they should stay home.
• Alternative work arrangements might be needed. You might need to consider having employees work remotely if authorities impose quarantines or employees refuse to or cannot come to your facilities. If you don’t already, consider cross-training employees to perform critical functions.
• Some employees may refuse to perform some of their regular duties because they fear being exposed to the flu. Those who travel frequently or attend large meetings may balk.
• Some employees may not seek healthcare for financial reasons or out of fear of exposure at the doctor’s office.
• Employees may need personal assistance. It might involve finding care for a sick relative. They may need help obtaining food, water or cash during a quarantine.
• Employees may be unable to focus on work (or work at all) due to the emotional fall-out of a pandemic. They may need time off, counseling or other assistance.

Your obligations as an employer

As they plan for a pandemic, employers face competing and complicated legal issues.

Employers are legally obligated to provide a safe workplace. In the face of a pandemic, you may be liable if your infected employees spread the disease.

Your best defense will originate in the prevention and response measures you include in your pandemic plan. It should include:

• A communicable disease policy. Emphasize that employees with flu symptoms must not come to work.
• Employee education on how to prevent spreading the flu. Good hygiene is the key. Remind employees to cover their mouths when they cough and their noses when they sneeze. Throw out used tissues immediately. Wash hands frequently, or use alcohol-based hand sanitizer. Avoid touching your eyes, nose and mouth.
• Other measures to prevent the spread of disease at work. Employers can reduce the risk of workplace infection by providing air ventilation and purifying systems, restricting travel and implementing remote or other work arrangements to reduce personal contact.

Of course, there is no way to anticipate all contingencies, but an employer’s reasonableness often plays a key role in defending against legal claims.

The U.S. Centers for Disease Control and Prevention offers an online Business Pandemic Influenza Planning Checklist that can help you audit your readiness to deal with swine flu.

Employment law issues

Employers must balance their obligation to maintain a safe workplace with other legalobligations. Consult with your attorney for more advice on these important issues. The FMLA, ADA and other laws may apply here.

While you will want to make reasonable efforts to keep contagious workers home, disability laws may limit your right to ask employees about their medical conditions or require them to take medical exams. In addition, you must consider employees’ privacy rights and whether falsely accusing someone of having a pandemic flu could be defamatory.

Employers must also address their legal obligations to employees who must miss work for medical reasons. You may be legally obligated to provide leave and restore employees to their jobs when they return from leave.

Depending on the circumstances, employees may be entitled to worker’s compensation benefits, paid time off, disability or other paid benefits, continued health insurance or unemployment benefits.

As a practical matter, be prepared to voluntarily extend your time-off policies.

You might also want to consider voluntary, special pay policies designed to encourage contagious employees to stay home.

When an employee who isn’t protected by leave or disability law refuses to come to work out of fear, you may have to decide whether to grant the time off or terminate the employee. That decision has legal implications. Consider whether the employee is at-will, as well as the risk of other legal claims. In particular, OSHA law protects employees from retaliation if they refuse to work because of good-faith concerns about workplace safety.

It may seem easiest, particularly during these tough economic times, to defer planning for a pandemic that may not occur. Given the human stakes and the complexities involved in an actual pandemic, however, advance planning is critical to ensure a careful, thoughtful response.

By Megan Anderson, Esq., a principal at the law form of Gray Plant Mooty in Minneapolis. She concentrates her practice in employment law counseling and litigation. Contact her at (612) 632-3000. Additional reporting by HR Specialist.