As the weather turns cold and as contractors schedule more construction projects indoors, concerns over employee health and safety take on a new urgency as October marks the annual start of seasonal influenza (flu). According to the Centers for Disease Control and Prevention, “During the week of September 27-October 3, 2009, influenza activity continued to increase in the United States. Nationwide, visits to doctors for influenza-like-illness increased over last week and are higher than expected for this time of year. In addition, flu-related hospitalizations and deaths are increasing as well, and are higher than expected. Thirty-seven states are reporting widespread influenza activity at this time.” (http://www.cdc.gov/h1n1flu/update.htm)
The media hype surrounding the H1N1 Flu, referred to as the “Swine Flu”, has recharged in recent weeks as the virus continues to infect more and more people each day. Idaho’s Department of Health and Welfare reports that for the four-month period of 4/26/09 – 8/31/09 there were 337 reported cases of H1N1 flu in the Idaho. Compare that to 283 reported Idaho cases in just the one-month period from 9/1/09 – 10/3/09. (http://healthandwelfare.idaho.gov/Health/PanFluHome/IdahoCaseCounts/tabid/890/Default.aspx)
The CDC’s Advisory Committee on Immunization Practices (ACIP) recommends that certain groups within the population receive the H1N1 flu vaccine. These groups include pregnant women, people living with or caring of children under 6 months old, healthcare and emergency medical service providers, people between the age of 6 months and 24 years old, and people aged 25 through 64 years old at higher risk for H1N1 flu because of certain serious health conditions. (http://www.cdc.gov/h1n1flu/caccination/public/vaccinationqa-pub.html).
According to an article in the Cornell Sun, in New York State, for example, all healthcare workers are being mandated to get both vaccines for seasonal flu and H1N1. This includes physicians, nurses, social workers, laboratory technicians, housekeeping, security/transportation services, construction workers, and even hospital volunteers. (http://cornellsun.com/section/opinion/content/2009/10/09/line-flu-shots)
Recently an employer-client called with an interesting question related to H1N1 flu. An employee wanted time off from work because the employee was concerned that the employee would be exposed to H1N1 virus. The employee did not have any flu-like symptoms, but rather wanted time off because of the possibility of contracting the virus.
What are an employer’s obligations when it comes to H1N1 Flu or other outbreaks or pandemics? Certainly if the employee exhibited flu-like symptoms the employee should not come to work. But does an employer have an obligation to protect its employees from H1N1 Flu?
Under the Occupational Safety and Health Act of 1970 (OSHA), an employer does have an obligation to provide a workplace free from serious hazards and to comply with OSHA rules, regulations and standards. An employer, however, does not guarantee the safety of its employees. Although the legal obligations of an employer with respect to H1N1 Flu may be limited, practical concerns such as absenteeism and workplace productivity should motivate an employer to take certain steps to ensure its employee health policies meet or exceed federal guidelines.
In order to balance the employer’s obligations under OSHA with the practical difficulties of dealing with a viral outbreak or pandemic, an employer should review its employee health “best practices” and ensure that they comply with federal health recommendations. An employer should review not only its literature regarding hygiene and sick leave policies, but also its facilities and supplies (such as bathrooms, tissues, hand sanitizers, etc.). The Center for Disease Control (CDC) has information about H1N1 Flu on its website specifically designed for employers (http://www.cdc.gov/h1n1flu/business/). For example, the CDC recommends that sick employees stay home for 7 days after symptoms begin or until the employee is symptom-free, whichever is longer, in order to prevent infection. The CDC also publishes posters regarding hand-washing and covering your cough that employers can post in employee workspaces. Construction employers can post these at jobsites.
Along with updating employee health best practices, an employer should also educate its employees about the best practices. The Center for Disease Control provides a PowerPoint presentation for employers on its website that includes general information about H1N1 Flu, symptoms, and everyday steps that can be taken to protect employee health. A meeting or presentation for employees regarding health best practices can decrease the risk of employees contracting and spreading H1N1 Flu and other viruses.
The best approach for an employer to take regarding H1N1 Flu or other viruses is to update employee health “best practices” information and educate employees about those best practices. Check the CDC’s and the Idaho Department of Health and Welfare’s website weekly for updates on H1N1 Flu and other viruses and for valuable information specifically targeted to employers.
Jeff Sykes is an attorney with the law firm McConnell Wagner Sykes + Stacey PLLC. He represents businesses and individuals with legal problems and concerns involving contracts, construction, insurance, employment, and real property matters.
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