The Government is estimating that in the coming months up to 12% of the workforce will be absent from work for reasons relating to swine flu. The contagious nature of the illness means employers must be particularly mindful of their legal obligation to provide a safe system of work and prevent a reasonably foreseeable risk of injury to their employees
It is hoped most employers will have (by now) heeded the advice of the Health Protection Agency in respect of publicising to staff the symptoms of swine flu, the steps that must be followed in the workplace to reduce infection and the spread of the disease, and a requirement that those who are suffering from flu-like symptoms must not attend the workplace. They should also clearly communicate to employees how absences will be regarded during the pandemic, including setting out when they are prepared to pay (and when they will reserve the right not to pay) an employee who does not attend work.
While ordinarily (and particularly in the current economic climate) employers are keen for their staff to return to work as soon as possible, those with swine flu need to be encouraged to stay away from work for as long as they might be infectious. Since staff who are not paid in full may be tempted to return to work prematurely, employers might consider reviewing sick pay provisions to provide for the right for all employees to receive full pay for one week if absent due to swine flu, while at the same time informing them that they may be subject to return-to-work interviews following any sickness absence to discourage employees from abusing this benefit.
Even though employees displaying symptoms of swine flu may insist on attending work (for example in order to maintain their level of income) they should be reminded that they must co-operate with their employer's duty to comply with health and safety legislation. But, unless the contract states otherwise, if the individuals who refuse to co-operate are not going to be paid in full, it is unlikely that the employer can force them to stay away from work. In such an instance, arrangements should be made to isolate them from others.
An alternative measure that can be taken to accommodate an infected staff member's wish to continue to work is to look into the possibility of remote working. In fact the possibility of working from home is also something employers can consider in respect of employees who are especially anxious regarding infection and refuse to attend work or as a general measure to keep the risk of infection to a minimum. However, care should be taken both to ensure that legislation in respect of health and safety and working time is complied with and that employers reserve the right to insist that employees attend the workplace if necessary.
Of those employees who remain at work, those who are known to be particularly vulnerable should be risk assessed to gauge whether their working environment presents a high risk of infection, such as examining the extent to which the employee is likely to come into contact with infected individuals and reducing or removing that contact, by moving them to a different working environment,.
In the case of pregnant employees (who are considered more susceptible because their immune systems are suppressed) where it is not possible to avoid risks by other means, they must be offered suitable alternative employment on a temporary basis or suspended from work on full pay, on medical grounds, for as long as necessary.
While the current economic climate means that employers are already operating with a reduced workforce, those employees who continue to be able to work can be assisted in the task of covering for absent colleagues if employers clearly prioritise the essential functions that they expect to be carried out during the pandemic. A system of buddying could also be considered, whereby staff pair up and share essential knowledge now so that future absence can more readily be covered.
Finally, care should be taken that employers observe their duty of confidentiality to their employees and that information regarding an employee's health,regarded as ‘sensitive personal data' under the Data Protection Act 1998, is not disclosed or processed without the employee's express informed consent. Providing information to staff, or acting in a way that allows them to identify that a particular employee has swine flu, would, for example, be in breach of these obligations.
Lou Marshall works in the employment group at Fladgate
