Swine flu in the workplace: legal issues and protecting your business

May 5, 3:27 AMTravel Marketing ExaminerRochelle Paul

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Attorney, Jeffrey Kroll (Photo provided by Jeffrey Kroll)

Attorney Jeffrey Kroll is principal at the law offices of Jeffrey Kroll in Chicago, IL.  You can contact Jeff through his website and blog.

Chicago, IL - Employers across America have been dealing with the swine flu outbreak as best they can, walking a balance between protecting their business, while also protecting their employees and clients.  These employers are encouraging employees who become sick to stay home, or if their child is stick, not to come in to work. 

For other business owners and managers, swine flu has not been something for concern, but rather a problem in maintaining the bottom line.  These owners and managers are not as cooperative.

In a follow-up to our swine flu article, Swine flu at work: what's the boss willing to risk, I talk again with our legal expert from Chicago, attorney Jeff Kroll.  Jeff spoke with me about what employers and managers should keep in mind, and how it is they can and should protect themselves as we continue to see how this all plays out.

Straight to the point, is it against the law for an employer to outright fire someone who choses not to come in to work due to swine flu?  According to Jeff, this depends on the size of the business.  For employers with more than 50 employees, they are bound by the Family and Medical Leave Act.  This act "requires employers to give workers 12 weeks of unpaid leave in the case of a serious illness or some sickness with your child."

Conversely, if you have less than 50 employees, and with a few additional contingencies, "they don't have to give them paid leave, and that's where you'll see people loosing jobs and getting fired."

Is firing an employee the best, and smartest move for an employer when it comes to swine flu?

Frankly, no.

According to Jeff, the best route an employer or manager should be taking is the precautionary route, and not putting your employees, customers and business at risk in the first place.

"Today, with swine flu and what's going on in America, if there is any scintilla of evidence, just some small doubt in your mind that someone is sick and has a fever or could be a flu, keep them at home, do the right thing, let them stay at home, pay them for their time, work out something with them where you'll give them something on the back-end, for example a bonus at the end of the year, but do something where you're not exposing yourself to liability by possibly spreading their infection around your office."

So, what happens if a business owner, where there is customer contact, does not act in a way that protects their customer?  Would there be a possible liability should those customers become ill, through contact with your business?

Jeff responds, "I believe so.  And the issue isn't whether the customers get sick, but it's what did you do about the knowledge of the flu, you know, when did you know about it and what did you do?"  Jeff warns that if there is knowledge on your part that an employee was sick, and you allowed that person to remain at work, you could be liable.

"Because if you had knowledge that one of your employees was sick, had the flu, and yet you put them in the front lines as a waitress, as the greeter, you know, what have you, at a restaurant, and they now start exposing his virus to tens of hundreds of people, you as the business owner could face liability for knowingly and willingly allowing this person to work there."

For the small business owner, this type of issue can be financially devastating.  By perhaps having to lose your employees for a week, are you putting yourself at risk as well?  Can a small business owner afford being without staff?  If not, what can or should they do in an effort to protect their business, while also protecting their employees and clients? 

How can a business owner serve their customers while keeping the doors open?

Adjusting how they do business.  By looking at other options for the conducting of business, there are opportunities available, if you just think a little bit outside the box.

Jeff suggests for those who need to travel, "there are a lot of people who are, for example, instead of sending people to meetings, they're doing teleconferencing."

Telecommuting is also and option.  "More and more people are allowing people to work out of their house."  There are also businesses that have taken to "extreme cleaning."  These businesses are making sure their employees are extra vigilant when taking hygienic means to protect themselves and others.  Jeff mentions, "I was just in an office today that just reeked of Lysol.  They're taking preventative measures, to make sure no virus is spread."

We've seen school districts closing down their schools when swine flu shows up.  They are doing this in an effort to combat the problem, and keep it from spreading throughout the building.  These districts are working to stop this illness before it takes over the entire school, and then all walls beyond.

Attorney, Jeffrey Kroll (Photo provided by Jeffrey Kroll)

Alternately, in some place, health departments are now saying they don't believe its necessary, as this strain of wine flu has not shown itself to be as bad as originally thought. According to press release from the Maricopa County Health Director, Dr. Bob England supports hot closing schools.  "Because current data does not suggest that this strain of H1N1 is behaving any differently than seasonal flu, I am recommending schools in Maricopa County no longer dismiss classes due to a confirmed case."

But, do these school districts have a luxury that business owners don't: a lack of liability if they don't act to prevent spreading?  And are these schools acting for the well-being of their communities by now not closing schools?

What about the parents who not only have to consider their family's health, but how their child could be exposed to an illness, then bring that home, then in-turn bring it into the office, especially if schools no longer work to stop the spread?

Is there a domino affect?  What should the parent do?  What should the business owner do?  Additionally, is it in the best interest of the owner/manager, and their business, to help prevent the spread of swine flu when they have employees who have children?

"That is the big issue these days, because parents without paid sick day have a tough decision about staying home.  You know, do they stay home with their sick child, or do they take paid, public transportation, or work in a job with public contact?  For example, restaurants, things of that nature, where you now are risking exposure to others."

These issues are not strictly on the shoulders of employers either.  As Jeff points out, "Along those same lines, we're talking about employers, but we as individuals have a certain degree of accountability too.  If your daughter is home with the flu, and you don't know if it is the swine flu yet, and yet you start sending her to school or to play-dates, you are risking the spreading of this as well."

We all know the American culture is one of going to work, even when you're sick.  No matter the economic environment or risk of layoffs, tradition dictates that we go to work when we're sick.  But is this a good culture?  Haven't we created a culture where a pandemic is almost expected, in that we see simple colds and influenza spreading nationally and internationally every year?  Are we not at fault for this by creating an environment that dictates we go to work sick?

According to the World Health Organization, annual influenza epidemics result in 3 to 5 million cases of severe illness, with an estimated 250,000 to 500,000 deaths, mostly among high risk groups.

To date, in the US there are 279 cases of swine flu, with 1 death.  It is easy to see that "just the regular flu" can and does cause extensive damage to the international community yearly.

What if you have an employee who is sick in general, maybe with a cold or the regular, yearly influenza.  Are there ramifications if an employer does not act to protect their customers from the spread of illness?

So, does this mean that a business owner or manager should be aware of these issues outside swine flu, and take preventative measures throughout the year, pandemic or not?  Would a business owner/manager be liable if they did not take preventative measures for these events?

Jeff believes you are.  "Exactly.  You're exposing yourself to liability in those situations."  Being preventative throughout the year, pandemic or not, is in the best interest of yourself and your business.

What if you're taking all the precautions you can think of, but concerned that there may still be illness that gets through, especially in an environment of lawsuits?  Should a business owner keep a record of the efforts they put forth?

Jeff advises, "Not only keep a record, but you know, kind of cover your butt, and say that Mary Jones had the flu and I kept he home from such-and-such a date until such-and-such a date. I eliminated any contact she had with individuals, customers, etc..."

For the employer, business owner, or manager, your job is to protect your customers and your employees.  By taking common sense steps, even ones that cause you to keep employees at home while you find alternatives to filling their roles temporarily, you not only help in the prevention of spreading illnesses such as swine flu, you also protect yourself and your buisness from a potential liability.

Doing this in regards to all illnesses, not just the swine flu, will allow you to protect yourself, while also providing for the well being of your employees and customers, and additionally will build a positive relationship with those involved.

The CDC provides information on the swine flu issue, as well as other health issues nationally and internationally.  The following is provided by them to help you stay healthy and use to combat being exposed to swine flu.

What You Can Do to Stay Healthy

• Stay informed.  This website will be updated regularly as information becomes available.
• influenza is thought to spread mainly person-to-person through coughing or sneezing of infected people.
• Take everyday actions to stay healthy:

1. Cover your nose and mouth with a tissue when you cough or sneeze.
2. Throw the tissue in the trash after you use it.
3. Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hands cleaners are also effective.
4. Avoid touching your eyes, nose or mouth.  Germs spread that way.
5. Stay home if you get sick. CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them.

• Follow public health advice regarding school closures, avoiding crowds and other social distancing measures.
• Call 1-800-CDC-INFO for more information