Hunton Employment & Labor Perspectives

H1N1 flu has become as widespread as feared.  For the period of August 30 to October 24, 2009, the Centers for Disease Control (CDC) reports 12,466 confirmed U.S. H1N1 hospitalizations and 530 confirmed deaths.  The CDC attributes 1339 deaths to H1N1 since the outbreak began in the Spring.  The Countries that are experiencing the worst outbreaks are the US, Mexico, and China.

This public health crisis is expected to get worse.  Any employer who has not yet put together a pandemic flu plan should do so immediately.  The details regarding such a plan are contained in the April 2009 "Swine Flu Pandemic Preparedness" and the May 2009 "H1N1 Update" Client Alerts.

Travel.  Employers should never require anyone who is exhibiting flu like symptoms to travel.  Also, the CDC has clear guidelines regarding which populations are at most risk for serious complications from H1N1.  Employees who fall within these risk categories may balk at travel to areas that do not have an appropriate level of health care.  Employers should try to work around such issues by postponing travel or using videoconference or other options to avoid travel to areas without sophisticated medical facilities.  For those employees who are able to travel without increased risk, employers should keep them informed of screening issues at their destinations.  For example, Japan and China are screening arriving passengers for flu like symptoms.

Sickness at Work.  Of course, all employees who are exhibiting flu like symptoms at work should be sent home.  The current CDC guidelines are that individuals who do not work in health care should stay home from work until they have been fever-free for at least 24 hours.  This guidance is not foolproof.  Individuals can continue to spread the flu virus for days after they have stopped running a fever.  However, this approach should at least remove the obviously contagious from the workplace.  Some employers are going further and requiring employees who have family members with H1N1 to stay home due to the risk that the employee may be carrying the virus.  This precaution is not recommended, as it will likely have little impact on disease transmission in the workplace.

Notifying Co-workers of an Employee’s H1N1 Diagnosis.  The EEOC has taken the position that employers cannot share information that a co-worker has H1N1 to others in the workplace who could have been exposed.  Clearly, this information cannot be shared if the employer only learned of the diagnosis through HIPAA protected information, and management should not ask employees who are out sick what is wrong with them.  However, where an employee with the flu has volunteered to management his or her diagnosis, the EEOC’s gag-rule seems beyond the scope of supporting law.  Employers should understand that there is legal risk associated with sharing this information (due to the EEOC’s position).  However, many employers are sharing the information with co-workers on a case by case basis if the circumstances warrant such steps, such as if the exposed co-workers are known to fall within one of the high risk categories (e.g., pregnancy).