Policy Clinic – Managing swine flu

Policy guidelines

  • Employers will need to consider how their policies, particularly those relating to sickness, absence and flexible working, can be adapted should an outbreak of swine flu occur in the workplace.
  • Employees should be advised to stay at home if they are sick and should feel comfortable to do so despite the economic climate. Optimise the use of technology to allow staff to work from home.
  • Employers will need to be prepared to be more flexible when dealing with requests for flexible working or time off to look after dependents. Employees are not generally entitled to refuse to attend work for fear of contracting the virus alone. This will need to be dealt with sensitively by employers and on a case-by-case basis.

The Department of Health has warned that a quarter of UK employees could contract swine flu, costing the economy £1.5bn a day. The full impact of the virus is unlikely to be felt until the annual flu season starts in the autumn. But already enquiries at GP practices have doubled in the week ending 24 July 2009, and online diagnosis and prescription services have been set up to take the strain. Employers must prepare for the likely autumn flu spike now by reviewing and amending their policies to cover such epidemics.

These policies must not only take into account employees who are diagnosed, but also those who may need to look after family members suffering from the virus. Employers must also make plans to protect the rest of the employees in the office to ensure their work can still be carried out effectively. On top of this, they must ensure that they comply with their legal obligations and do not compromise the health and safety of their employees.

Employers must be prepared to be more flexible than usual and to plan for and manage absence effectively. Sickness and absence policies should be reviewed to ensure they clearly explain how the employer will deal with someone who has flu-like symptoms and outline return-to-work procedures. Employers should promote an environment where staff who feel unwell are not afraid to inform their employer early enough and stay at home until they are better.

Employers will also need to consider how to deal with ‘worried well’ employees who refuse to come to work as they are anxious about the risk of infection. An employee is not generally entitled to refuse to come to work on the basis of such fear alone. However, this can be a difficult matter to handle, and should only be treated as a disciplinary issue where it is reasonable to do so.

Conversely, those who are not so well anyway, and who have medical conditions that could be aggravated by swine flu, should be encouraged to stay away from the workplace.

It is therefore important to keep employees well-informed to prevent scaremongering. Government advice and updates should be relayed to employees on a regular basis, with details of the NHS and Department of Health websites and posters put up in staff areas setting out current advice.

Dealing with infected employees

It is the duty of the employer to take steps which are reasonably necessary to ensure the health, safety and welfare of their employees at work. A risk assessment should be carried out, considering which factors might make employees particularly vulnerable to infection.

There are three main areas in which measures can be implemented to reduce the risk of infection: environmental (concerning hygiene in the workplace); organisational (modifying the daily pattern of work-life); and individual (altering individual circumstances, ie, travel arrangements).

Policies should also be considered to deal specifically with employees who are vulnerable to catching swine flu, such as those who are pregnant or have pre-existing medical conditions.

An employee who has contracted the virus should be advised to stay at home until they are back to full health. Employers should consider the current climate of job insecurity and look out for signs of employees forcing themselves to come to work even when they are plainly unwell. Notices should be displayed around the workplace reminding staff of the danger they pose to others if they decide to come in to work sick.

Modern technology can enable staff to work from home. Video-conferencing or other forms of conferencing – eg, Skype, webcams and external access to company e-mail and intranet – should all be used if appropriate.

Employers must be prepared to provide more flexibility for employees who are responsible for caring for family members struck down with the virus. This may include offering flexible working hours and encouraging staff to work from home (where possible). It is important for employees to inform their employers of any family members who are suffering from the virus.

Asking fit and well staff to cover absences

Employers should identify staff who have interchangeable skills and ensure that any staff who are required to take on new responsibilities are given appropriate training. Do the new tasks fall within their job description?

If not, requiring an employee to take on new responsibilities may amount to a variation of the contract for which their consent will be required.

If employees are willing to work longer hours as a result of absences, employers should ensure that they comply with the requirements of the Working Time Regulations – eg, adequate rest breaks, and the right to sign an opt-out agreement.

Another option for under-staffed employers is asking other employees to cancel their annual leave. For example, NHS Direct has banned helpline staff from taking annual leave at this time of high demand.

What next?

The government is proposing to introduce regulations extending the amount of time that an employee can take off work without needing a doctor’s note from seven to 14 days. This is an emergency measure that aims to reduce the burden on GPs. However, employers are concerned that the change will be open to abuse by employees tempted to pull a ‘sickie’.

Whatever the outcome of swine flu, it is worth noting that these steps outlined above can still be applied when managing outbreaks of ‘normal’ flu in the workplace, which is already a source of many absences every year.

Nick Hobden, partner and head of employment, and Ben Stepney, trainee solicitor, Thomson Snell & Passmore

Promoting good hygiene

The most effective way of minimising the spread of swine flu in the workplace will be through the promotion of good hygiene. Employers can manage hygiene issues in the workplace in numerous ways. The Department of Health advises providing antiseptic wipes and handrubs in toilets and at entrances to premises that are open to the public. The risk of infection can be reduced by increasing cleaning schedules for surfaces, banisters, handles and toilets.

Employers can help raise awareness of the signs and symptoms of swine flu by prominently displaying posters in the workplace or by sending business-wide e-mails. Remind employees that the best defence against spreading swine flu is to exercise common and basic levels of personal hygiene.

NHS advice to employers*

  • Raise awareness of the importance of respiratory etiquette and hand hygiene.
  • Consider the practicability of the effective use of social distancing within work environments if social interaction is unavoidable. For example, measures to reduce the frequency of interactions should be considered – eg, staggering lunch breaks, or reducing the number of people in enclosed places.
  • Reduce face-to-face meetings wherever possible and only undertake essential travel.
  • Encourage the use of video or telephone communication or conferencing.
  • Consider the use of homeworking for staff for whom this would be a practical option.
  • Identify individuals who may be at particular risk from the adverse effects of flu and deploy them in areas where contacts are minimal.

* Pandemic Flu: Guidance for Business

Swine flu: guidance and advice for employers and HR

Swine flu: preventing staff sickies is better than cure

Swine flu pandemic raises workplace litigation risk

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