Swine flu: legal Q&A

With swine flu continuing to spread, more and more questions are being asked as to what employers should do to protect employees’ health. David Bradley, EMEA head of employment at law firm DLA Piper, considers some key questions and their legal implications.

Q How should we protect the health and safety of our employees?

A Reducing the risk of employees developing swine flu and managing those who do develop symptoms is key to keeping business running smoothly. An effective strategy should include:

  • Keeping abreast of government advice and communicating this to staff
  • Updating contact details of staff and circulating emergency contact details of key staff
  • 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
  • Asking employees who are unwell to stay at home.

Q Are we able to purchase and provide anti-viral drugs for our employees?

A 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. Employers can seek to facilitate a prescription of the relevant medication by:

  • Establishing a network of private medical practitioners engaged by the employer who can prescribe the medication to staff; or
  • Requesting that employees obtain a prescription from their individual GP.

Employers can arrange for the drugs to be dispensed by:

  • Ensuring that the medical practitioners it engages also have the ability to dispense; or
  • Entering into a partnering arrangement with a chain or network of pharmacists for the dispensing of the drug; or
  • Relying on normal retailing pharmacists to provide the drug. In these circumstances, the employer would be subject to normal public availability of the drug and, indeed, high-street retail prices.

In practice, most employers when introducing a mass treatment scheme will engage an independent group of medical practitioners and deal with the dispensing of the drug through medical centres or agreed arrangements with other dispensing chemists. When engaging private practitioners, the employer should check qualifications/credentials and appropriate PI insurance cover levels.

Q Can we require employees to take anti-viral drugs and take action if they refuse to do so?

A The circumstances in which an employer could require an employee to take anti-viral medication and discipline them if they refuse to do so are likely to be extremely rare. It is likely to be limited to circumstances in which there are real and proven risks of the employee contracting swine flu. In this situation, the employer may have grounds to exclude from the workplace any employee who has refused the relevant medication to protect the employee’s health and safety.

Q Are there any confidentiality/data protection issues affecting our ability to process information on employees with swine flu?

A Information about the health of an employee is personal, sensitive data and, as such, an employer cannot process any details relating to the health of an employee unless they have the employee’s explicit consent. Employees should be reminded that they should keep information relating to the health of their colleagues confidential. An employer’s data protection policy should explicitly deal with the circumstances in which data will be processed.

Q How does the threat of swine flu impact on our policies and procedures?

A Employers should review and update any policies or procedures that 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 before returning
  • Reports that the Department of Health is considering allowing employees to self-certify sickness for up to 14 days
  • Extending flexible or home working arrangements to emergency situations
  • Whether the right to take leave to care for dependents should be extended
  • Whether any special leave should be paid or unpaid.

Q Do we have to consult with employees on any changes to working practices?

A Employers should ensure they effectively communicate important changes to working practices to their employees. However, in general, there is no obligation to consult with employees on any non-contractual changes – for example, changes to non-contractual policies. In contrast, for any contractual changes, unless there is sufficient flexibility in the terms of the contract to facilitate the change, employers should consult with employees with a view to obtaining their consent to the changes. A failure to do this and unilaterally imposing the changes could give rise to breach of contract and/or constructive dismissal claims.

Q Can we quarantine our employees?

A In normal circumstances, employers are not entitled to prevent employees from coming into work unless this is provided for in the contract of employment. Following previous periods of concern over SARS and avian flu, we have seen examples of 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. If the contract is silent on this issue, unilaterally imposing changes to an employee’s working conditions by preventing them from coming into work is likely to constitute a breach of contract and could give rise to claims for constructive dismissal.

Q How do we deal with healthy employees who are afraid of coming into work?

A Dealing with employee fear is difficult to manage in practice. Employers face conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, unless there is a particular risk posed in the workplace, employers are entitled to expect employees to come into 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. On the one hand, employers will want to deter malingerers. On the other, if a significant proportion of the staff are absent, disciplining, and ultimately dismissing, others is unlikely to prove productive – particularly at a time when the continued goodwill of working employees may be critical.

Q How do we deal with staff absence?

A 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
  • Identifying staff with interchangeable skills who can provide cover for absent colleagues
  • Training staff to cover key functions and roles
  • Investing in and/or using technology to allow employees to work 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 key to effective business continuity.

Employers should also consider restrictions on working hours and rest breaks stipulated in the Working Time Regulations 1998 where staff are called on to cover absences.

Q We are a multi-national organisation. How do we deal with contingency planning on a global basis?

A Swine flu is an international concern, and multi-national employers will need to implement pandemic business continuity plans across worldwide operations. 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
  • Any reporting obligations to regulatory bodies.

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