Employers now find themselves grappling with the issues arising from 1124 influenza A (H1N1), more commonly referred to as swine flu. The Government soon expects 100,000 per day to contract the disease, so what preventative measures should employers 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 prepared for an epidemic and can limit the impact on their business.

Q: What advice should I be giving to employees now?
A:  In light of the concerns arising from swine flu, 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 which includes:

• providing staff with access to the latest government 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 high standards of cleanliness
• considering alternatives to direct meetings in order to reduce face-to-face interaction, including use of telephone conferencing and home-working; and
• suggesting that staff who feel unwell contact their GP for a proper assessment and diagnosis.

There is guidance from the Department of Health available by going online and downloading the following pdf file: http://www.vwl.co.uk/cms/document/Flu_ guidance_080509.pdf

Q: What should I do if one of my employees complains of flu-like symptoms?
A:  Swine flu is contagious. 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.

Q: What if an employee wants to carry on in the workplace – can they be excluded?
A:  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.

Q: What if an employee uses swine flu as an excuse to stay away from work?
A:  If an employee is away from work on sick leave then they will be required to selfcertify the first four days of their 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 company 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 they have an effective return to work policy to deter employees from unwarranted sickness absence.

Q: What should I pay the employee?
A: If an employee is genuinely ill then they 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 where an employer insists that an employee stays away from work because they have flu symptoms. If an employee is arguing that they 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.

Q: Can you force employees to work from home to avoid the risk of transmitting the flu?
A: In the midst of an economic crisis, a major health pandemic affecting both absenteeism and productivity was the last news employers wanted to hear. The Department of Health has warned that a quarter of UK employees could contract swine flu, which could cost the economy £1.5bn 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.
Under these circumstances, employers should consider allowing employees to work from home. HSE guidance suggests opting for video-conferencing or tele-conferencing where possible instead of holding meetings. Where it is feasible, a contingency plan should provide for remote electronic working to reduce the need for employees to attend the office or have face-to-face meetings.
Employers should consider implementing or revising policies on home working, together with making sure that their IT systems are able to cope with a large number of people logging on remotely.

Q: If the Government advises everyone to stay at home, do I still have to pay my employees?
A: This issue generated a lot of debate in the workplace following the bad weather 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 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.

Q: What if employees are unable to get to work because schools are closed and they cannot arrange child care?
A:  The Health Protection Agency issued advice on the temporary closure of schools if a probable or confirmed case of swine flu occurs. Where schools are closed, affected employees may be entitled to time off work to look after dependants. An employee is legally entitled to take a “reasonable” amount of time off work to deal with emergencies involving a dependant. A dependant is an employee’s spouse, civil partner, children, parents, anyone who lives in the same household as the employee (excluding tenants and lodgers); those who reasonably depend on the employee to make arrangements for the provision of care. An employee is only entitled to time off for dependants in certain situations, including the following:

because of the unexpected disruptions or termination of arrangements for the care of a dependant; or
to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during school (or college) hours.

There is no set answer as to when a situation will be an emergency. Employers should consider each request on an individual basis. Recent tribunals have made clear that one factor particularly relevant to whether or not an employee is entitled to time off for a dependant, 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 their 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 employees 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 dependants regardless of length of service and whether or not they are employed on a full or part-time basis. Home workers and the self-employed are excluded from this right.

Q: Can you impose travel restrictions for your employees?
A: The World Health Organisation has not recommended any travel restrictions and states 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 are likely to be on an advisory basis. At present, it is 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.

Gareth Edwards is a partner in the employment team at Veale Wasbrough Lawyers. gedwards@vwl.co.uk