As the business community braces itself for the potentially catastrophic effects of the swine flu epidemic, Nick Jew, head of employment in the Birmingham office of law firm DLA Piper, offers a guide for employers.
It has been estimated that if swine flu was to affect one in four employees, it would cost businesses an estimated £7.5 billion per week.
Despite these alarming figures, a recent report by the Chartered Management Institute claimed that 53 per cent of organisations had no plans to help them cope during a pandemic.
For most sufferers, the symptoms have been mild and employers could perhaps be forgiven for being complacent. But, with up to 100,000 new cases each day, if they have not already, now is the time for them to sit up and take notice.
Unlike other business continuity programmes, planning for pandemic flu needs to consider potentially long-term changed ways of working. Here are some answers to the most pressing questions employers may have:
How should we protect the health and safety of our employees? Reducing the risk of employees developing swine flu and managing those who do develop symptoms is key to keeping a business running smoothly.
An effective strategy should include keeping abreast of government advice and communicating this to staff; updating contact details of employees and circulating emergency contact details of key people; carrying out a risk assessment; ensuring good hygiene practices in the workplace; training employees on the key facts and risks; displaying signs advising of symptoms and steps to reduce the risk of contracting the virus; asking employees to report to HR if they have flu-like symptoms; and asking unwell employees to stay at home
Are we able to purchase and provide anti-viral drugs for our employees? Employers cannot distribute prescription-only drugs directly to employees. These drugs must be prescribed by a qualified medical practitioner and dispensed by a qualified pharmacist. However, private doctors engaged by the employer can prescribe the medication to staff. Alternatively, employees could be asked to obtain a prescription from their individual GP.
Can companies require employees to take anti-viral drugs and discipline them if they refuse to do so? Such circumstances are likely to be extremely rare but the employer may have health and safety grounds to exclude from the workplace any employee who has refused the relevant medication.
Are there any confidentiality/data protection issues affecting our ability to process information on employees with swine flu? Information about the health of an employee is personal sensitive data and, as such, an employer cannot process details unless they have explicit consent. Employees should be reminded that they should keep information relating to the health of colleagues confidential. An employer’s data protection policy should explicitly deal with circumstances in which data will be processed.
How does the threat of swine flu impact on policies and procedures? Employers should review and update any policies or procedures which may be affected by an outbreak of swine flu. These are likely to relate to sickness absence, dependent care leave and flexible/home working.
Particular issues to consider include whether an employee with swine flu should be certified as fit to return to work by a doctor, extending flexible or home working arrangements to emergency situations, whether the right to take leave to care for dependents should be extended, and whether any special leave should be paid or unpaid.
Must we consult with employees on changes to working practices? Employers should effectively communicate important changes to working practices. Unilaterally imposing changes could bring breach of contract and/or constructive dismissal claims.
Can we quarantine employees? In normal circumstances, employers are not entitled to prevent employees from working unless this is provided for in the contract of employment. Following concern over SARS and Avian flu, we have seen companies introducing “exclusion” clauses into contracts to exclude employees in certain circumstances, for example if they pose a threat to the health and safety of others.
How do we deal with well employees who are afraid of coming into work? Dealing with employee fear is difficult to manage in practice. Employers face conflict between keeping genuinely sick employees away from work and the need to prevent unauthorised absence.
However, unless there is a particular risk, employers are entitled to expect employees to work as normal. Where employees do not come into work employers will be faced with a choice between implementing the disciplinary procedure as normal or dealing with the matter with more leniency. There are pros and cons to both approaches – employers will want to deter malingerers while, if a significant proportion of the staff is absent, disciplining and ultimately dismissing people is unlikely to prove productive, particularly if their continued goodwill may be critical.
How do we deal with staff absence? High levels of staff absence will affect business continuity. Employers should therefore devise a strategy for dealing with this. This may include:
Identifying a source of back-up labour, for example, agency workers; using staff with interchangeable skills that can provide cover for absent colleagues; training staff to cover key functions and roles; investing in and/or using technology to allow employees to operate from home and ensuring that the IT system can cope with large numbers working remotely. In many businesses, including professional services, this is likely to be crucial to effective business continuity.
We are a multi-national organisation. How do we deal with contingency planning on a global basis? Swine flu is an international concern and multi-national employers will need to implement pandemic business continuity plans worldwide.
Specialist legal advice will be required but key issues to consider in respect of each country include the rights and obligations of employers and employees; the existence and rights of works councils; language barriers; medical arrangements; personal injury liability; and any reporting obligations to regulatory bodies.