Employment Law: What to do if your staff get swine flu

Last August the swine flu (H1N1 virus) pandemic was declared as 'over' by the World Health Organisation. But as we make our way through winter and the threat of swine flu is with us once again, it is important that employers take steps that are reasonably necessary to ensure the welfare of employees is protected. Therefore, we thought it prudent to remind you of our previous advice on swine flu.

It is important for employers to remain alert to the risks and take preventative measures and precautions to prevent the spread of the virus. This can be achieved by the following methods:

• Maintaining the health and safety of employees;

• Reviewing current policies and practices;

• Considering a change to roles and hours.

1. Maintaining health, safety and welfare

Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees.

This is especially relevant when your employees are serving food and drink to the public. Simple precautions can help prevent the spread of the virus - some of these include:

• Ensuring the kitchens, bathrooms and other communal areas have hand-wash and paper tissues.

• Educating staff without causing panic. This can be done by displaying posters showing the symptoms and highlighting the government's precautionary steps.

• Ensuring tables, bars, toilets and kitchens are regularly cleaned with appropriate cleaning products.

• Sending home anyone who exhibits

flu-like symptoms as well as ensuring that those who contract the disease are given medical clearance before they return to work.

2. Policies and practices

It is important to ensure that your existing policies are appropriate for a pandemic, in the unlikely event that we have another breakout.

As a minimum you should check your absence procedure to make sure that it is fit for purpose. Is your notification procedure clear and concise? Is your sick pay policy clear enough? Do you have set 'triggers' for the various stages and do these need to be changed?

We consider employers are likely to face three particular challenges:

• employees who refuse to attend work or travel from fear of contracting swine flu;

• employees who are not sick but who take a "sickie";

• employees who need to take time off to care for dependants.

If you are faced with an employee who refuses to attend work or travel because of a general fear of flu you may be entitled to take disciplinary action against them and perhaps ultimately dismiss them, if they continue to refuse to obey your reasonable instruction to attend work. 

Such a dismissal is likely to be fair except in circumstances where the employee is facing "serious" and "imminent danger".

They might face such danger if, for example, a high number of their colleagues have contracted the disease and are still working on site or if they are asked to travel to a high risk location. 

Employers also need to be mindful that certain categories of employees might be more susceptible and should be given more protection. Pregnant employees and those with certain disabilities may fall into this category.

It is also likely that some employees will take advantage of the pandemic and claim to be unwell when they are not. Unfortunately, there is little you can do about this, especially for short-term absence of five working days or less.

With official guidance advising sufferers to stay away from the GP's surgery and to telephone the helpline or obtain a diagnosis online it may be pointless in trying to obtain a reliable diagnosis. Unless you are able to obtain evidence that the employee is feigning illness, it may be more effective to focus on managing staff absences.

It is also likely that employees may require more time off to care for dependants. If your existing policies do not deal with the statutory right to emergency time off to care for dependants, now is the time to correct them.

There are limits to this statutory right, including the fact that the employee is permitted to take a reasonable amount of time off in order to take action which is necessary to provide assistance when a dependant falls ill. This time off is unpaid. 

3. Having to change people's roles and hours

In some instances it may be necessary to temporarily change job roles or increase staff hours to deal with absenteeism.

Before introducing any such changes it is important to ensure that staff are fully consulted and their consent is obtained. Consider alternatives, like working from home - although this will obviously not be practical for the majority of catering or barstaff, a book-keeper for example may be able to work from home while recovering from a bout of swine flu.

If employees are not prepared to agree to these changes then you will need to be careful before imposing them unilaterally.

Your ability to do this will depend on the wording of the employment contracts. If the contract enables you to impose such changes then you may also consider disciplinary action against any employee who refuses to co-operate, so long as the change is reasonable.

It would, however, be worth taking legal advice before implementing such changes, as you will want to avoid breaching the employees' contracts.