Legal and Workplace Implications of the H1N1 Flu

By Mark A. Lies II, Seyfarth Shaw, LLP

Editor’s Note – Mark A. Lies II is a labor and employment lawyer and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

Most people are now familiar with the H1N1 flu, originally referred to as swine flu, which was first reported in Mexico then in the United States and the rest of the world. Given high density areas such as mass transportation, schools, hospitals, and the workplace, the potential is great for this widely circulating virus to spread from human to human in a short period of time.

H1N1 is a virus that usually affects swine. Certain of these viruses that primarily affect swine are genetically indistinguishable from the influenza viruses that are contracted by humans. H1N1 has contributed to the largest number of currently detected cases and severe illness and death in humans.

What are the Symptoms and Who is Most at Risk?
Once a human contracts the virus, the symptoms range from typical human-like influenza symptoms such as fever, extreme fatigue, coughing, sore throat, and muscle and joint aches, to eye infections, pneumonia, severe respiratory diseases, and other potentially life-threatening complications. Symptoms usually begin within two to three days of exposure and depend upon the specific subtype and strain causing the infection. Only a laboratory test can confirm the virus in humans.

Those at risk of contracting the virus are mainly individuals who work with infected swine, health care professionals, frequent travelers, and airline/transportation industry personnel. It should be noted that the virus does not seem to discriminate in the sense that healthy, sick, young, and old people all have a significant chance of infection.

How is H1N1 Transmitted?
Direct contact with infected swine or humans, or surfaces and objects contaminated by them, is considered the main route of human infection. It cannot be spread by contact with or consumption of properly handled and prepared pork food products.

Once a human contracts the virus, there is a potential for it to spread from person to person when a person talks, coughs, or sneezes. It can also spread through hand or face contact or through coming in contact with something that an infected person has already touched.

What are the Legal Ramifications that Employers Should Consider?
There are several employment and other laws that may apply to circumstances relating to this virus in the workplace that should be considered by employers.

Occupational Safety and Health Act
Under the Occupational Safety and Health Act, an employer has a legal obligation to provide a safe and healthful workplace. One of the Occupational Safety and Health Administration’s (OSHA’s) enforcement mechanisms is the ability to issue citations with monetary penalties to employers. According to Section 5 of the act, commonly referred to as the general duty clause, an employer is required to protect its employees against “recognized hazards” to safety or health that may cause serious injury or death.

Given that OSHA does not have a specific regulation that deals with the H1N1 virus, the agency will utilize the general duty clause. In order to determine the scope of the employer’s obligation under the clause, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources. In this case, OSHA would rely upon recommendations issued by the Centers for Disease Control (CDC) and Prevention, the National Institute for Occupational Safety and Health, or other similar resources. If OSHA can establish that employees at a worksite are reasonably likely to be exposed to the H1N1 flu, the agency will likely require the employer to develop a plan with procedures to protect its employees.

Under the act, the employer may also have additional legal obligations to the employees of another employer who may come to the workplace and may potentially be exposed to the hazard (in this case to H1N1 carriers). OSHA may utilize its authority under the “multi-employer workplace doctrine” to issue citations to the host employer when personnel of another employer are exposed. In these instances, citations can be issued by the agency to the host employer if another employer’s staff members are exposed or if the host employer created the hazard or exposed the other employees to the hazard. The host employer or the controlling employer at the site will ultimately be held responsible to correct the hazard.

OSHA will expect the employer to develop a program based upon a hazard assessment of potential exposure at the worksite (provided in more detail below), such as conduct employee awareness training regarding the hazard; develop procedures, including the use of personal protective equipment (e.g., masks) if necessary to prevent infection and transmission; develop a means of reporting infection and providing medical surveillance for employees who contract the virus; maintain appropriate documentation of the foregoing; preserve medical records; and maintain an OSHA 300 log for illnesses that are occupationally related.

Workers’ Compensation – Disability Benefits
In the event that an employee contracts the H1N1 flu as a result of occupational exposure (in other words, the illness “arises out of and in the course of employment,” which the employee must prove with competent medical evidence), the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment, and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should evaluate whether it has adequate workers’ compensation insurance coverage and coverage limits that include occupational diseases.

If an employee contracts the H1N1 flu and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that the H1N1 flu is going to involve significant medical issues, such as determining (1) whether the employee is infectious, (2) what type of treatment is necessary, (3) whether the employee presents a health risk to others, and (4) when the employee can safely return to work. Therefore, it is essential that the employer identify a competent medical professional with expertise in infection control who can advise it on all medically-related issues, including workers’ compensation.

Family and Medical Leave Act
Under the Family and Medical Leave Act (FMLA), employers who have more than 50 employees are required to provide up to 12 weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee is also eligible under the FMLA in the event of a serious health condition affecting a spouse, child, or parent.

If an employee contracts the H1N1 flu, this will most likely be considered a serious health condition under the FMLA, warranting the unpaid leave. Similarly, if an employee’s parent, spouse, or a child contracts the H1N1 flu, this will likely be a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for such an immediate family member.

It is certain that issues may arise if the employee contracts the H1N1 flu but is able to continue working while potentially exposing other employees to infection. Since the CDC appears to recommend removal of such individuals from the workplace to prevent transmission of the virus, the employer may have to consider placing the employee on an FMLA leave or providing some other form of leave despite the employee’s desire to continue working.

If the employee exhausts the entire 12 weeks of FMLA leave and is unable to return to work at that time, the employer may wish to consider additional unpaid leave for the employee, although such leave would be outside of the FMLA required reinstatement rights.

Americans with Disabilities Act
The Americans with Disabilities Act (ADA) provides certain protections to employees who may have physical, mental, or emotional disabilities but who are otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment that substantially limits one or more of the major life activities of an individual (e.g., breathing, working, speaking) that is chronic in nature. Thus, H1N1, which is expected to involve temporary infection and, hopefully, recovery, would not appear to qualify as a disability.

The ADA may become a factor, however, if an employee develops a disability as a result of the virus and cannot return to their former work duties because of such impairment. The employer must then be prepared to engage in an “interactive process” with the employee that involves a case-by-case dialogue regarding the employee’s ability to return to work, any work restrictions, what accommodations may be available that do not cause undue hardship to the employer, or whether the employee’s disability presents a direct threat to the health or safety of the employee or other employees. Again, it is recommended that employers engage competent medical advice regarding any accommodations that may be warranted as a result of the long-term effects of this virus.

Premises Liability
Under general common law principles in most jurisdictions, a landowner (sometimes the employer) who allows third parties to enter upon its premises for business or related purposes (such as clients, vendors, contract employees) owes these individuals a duty of “reasonable care” to protect them against hazards at the premises that are not “open and obvious.” In the case of H1N1, if the landowner is (or should be) aware that there are infectious persons at the premises (whether its own employees or tenants) who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may become contaminated with the H1N1 virus, the landowner may have an obligation to prevent such contamination through enhanced measures.

In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.

It appears that this new health hazard has already and will continue to impact the workplace. It is recommended that the employer take the following steps to preplan for such a hazard.

• Obtain information on the virus from the local department of public health, the CDC, or the employer’s local health provider so that the employer can determine whether there is an H1N1 health risk in the community and/or within the particular groups that may be within the workplace.

• Institute a program to require employees to comply with recognized personal hygiene practices, including hand washing; cleaning of surfaces with disinfecting agents that may have been contaminated due to sneezing, coughing, or other contact; and avoiding spread of the virus by coughing or sneezing without covering the mouth and nose.

• Inform employees that the employer is committed to providing a safe and healthy workplace (required under the act) and that it wants to protect its employees against potential exposure to any virus whether or not work related, including H1N1, within the workplace. Provide information to employees such as CDC key prevention practices discussed above.

• Advise employees that they are required to report immediately to the employer any communicable diseases, including the H1N1 virus, so that the employer can institute appropriate action with public health authorities to control the spread of the virus within the workplace and ensure that an adequate medical response is occurring.

• Inform employees that all such medical information will be maintained as confidentially as possible and that no employee will be subjected to retaliation for reporting such information.

• Ensure that the employer documents its actions to respond to any actual, reported infection or other information involving the H1N1 flu, including recommendations from the department of public health, medical providers, and to the affected employees as the situation is resolved.

• Follow the employer’s policies relating to documenting any requests for FMLA or other leaves that may be required to treat the H1N1 flu and resulting chronic health conditions.

• Document any employee requests for an accommodation and the interactive process with the employee for any H1N1 flu-related disability.

If the employer becomes informed of the facts relating to the H1N1 flu and responds in a reasonable manner as outlined above, the employer will be able to properly respond to this health hazard to protect the health of its employees, as well as to limit its potential legal liability.

Informational Resources
• Centers for Disease Control and Prevention:
• Occupational Safety and Health Administration:
• U.S. Department of Health and Human Services:
• World Health Organization:
CDC Emergency Response Hotline for health employers: (770) 488-7100

The author acknowledges source material on the H1N1 flu, including the CDC, American Medical Association, and Mayo Foundation for Medical Evaluation and Research.

H1N1 Update

As of June 3, 2009, the Centers for Disease Control and Prevention (CDC) reports 11,054 confirmed and probable cases of the H1N1 flu virus in the United States, and 17 deaths. By comparison, the agency states that on average, 226,000 people are hospitalized each year due to seasonal influenza (flu) and 36,000 die – mostly elderly.

First detected in the United States in late April, the CDC is uncertain at this time how severe this novel H1N1 outbreak will be in terms of illness and death compared with other flu viruses and will continue to take aggressive action in response to the current outbreak.

Labor and the Law – June 2009 RENDER | back