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Pitsel Pandemic News (05|14|09)

Add a Thousand a Day

H1N1 flu has infected 4,379 people in 29 countries the World Health Organization has announced this past Sunday, and the numbers increase by almost a thousand new cases daily.

Even if this H1N1 outbreak fails to reach full pandemic consequences it has given us a real-time example of the speed and the efficiency of viral contagion. With our close proximity to other species, and to each other, and with the astonishing adaptability of viruses, it seems more likely than ever that if this one isn't "IT", we may soon see one very much like it.

The WHO tends to lag behind most national reports but is considered more definitive. As tragic as the consequences are for those 4,379 + people, and scores of others related to and caring for them, at this point it appears we can be very grateful for the pre-planning and vigilance that governments, health departments, and industries world-wide have taken for those numbers to be as manageable as they are. Perhaps we have learned from the SARS outbreak the wisdom of preparedness and planning.

Employer Liabilities

The May 7, 2009 issue of Labour & Employment Update, from Field Law, suggests strongly that employers review the practical and legal issues surrounding pandemic liability. With an employee who becomes sick with Influenza A (H1N1) the legal considerations will be the same as those which arise when employees become ill with any other illness. This involves considerations under occupational health and safety legislation, employment standards, human rights, privacy legislation and possibly workers' compensation.

The business pandemic plan must have these considerations outlined and in place before illness hits the workplace. There won't be time to consider what obligations the employer has to the employees after employees apply for benefits, especially if they apply in multiples. Policies must be in place so that any claims may be applied against an existing statute, and subsequent responses cannot be viewed as individual bias.

The employer's obligations under the Occupational Health and Safety Act, the Occupational Health and Safety Code, and the Occupational Health and Safety Regulations, play an important role in your place of business dealing with the H1N1 situation, or any other communicable disease outbreak.

Employer Role

OHS legislation places an obligation on the employer to 1) ensure the health and safety of workers, as far as reasonably practicable to do so, and 2) to make workers aware of their duties and obligations related to health and safety.

Employers must have employee benefits policies in place, including sick leave, short term disability, long-term disability, employment insurance, or workers' compensation. Employers must plan actions that will protect both the employees and themselves, and ensure legislative requirements are met. An employer must take proactive steps to develop policies to deal with a potential pandemic outbreak.

The employees must be informed about influenza symptoms and prevention measures to avoid spreading and contracting influenza. The employer must facilitate, mandate, and monitor employee compliance with health hygiene habits, including washing hands frequently and use of hand sanitizers.

Workplace Response to Pandemic Influenza

Response strategies begin with designating a person or team to be responsible for developing a plan for a possible pandemic.

Advise employees to cough or sneeze in to their sleeve, and not their hand. Consider providing alcohol based hand sanitizers in public areas and antimicrobial wipes for cleaning work surfaces. Encourage social distancing practices in the workplace of at least two meters apart from other employees and from customers during times of pandemic infection.

Utilize work from home policies and procedures where possible. The duties, expectations and deadlines for such deployment should be clearly set out, as should hours of work. Typically, a work day from home should copy as closely as possible the time, duties, responsibilities, and accountability as a day in the workplace.

Travel policies from recent "hot spots", return to work guidelines, and compensation issues should all be in place before they are needed. There may be issues that arise if a person acts independently because a policy is not established.

Pandemic Planning Team

The planning person or team should also act as the point of contact for employees who have questions about influenza, and be responsible for informing and updating employees about the influenza situation. Policies must be in place for dealing with those who are showing symptoms of an influenza-like illness in the workplace. Ill employees must be aware of their responsibilities, and any benefits they may be entitled to. Under OHS legislation, for example, an affected employee who refuses to remain at home when ordered to do so may be prevented from entering the workplace and may be disciplined accordingly.

Defining Expectations

When an employee who has traveled to a "hot spot" refuses to stay at home for the period of time indicated by the employer, the employer may have grounds to discipline that employee accordingly. However, when requiring employees to remain at home there are possible human rights implications particularly where the employer does not intend to compensate the employee for the absence.

Under OHS legislation an employee has a right to refuse work that he or she believes is unsafe. The employee may be entitled to pay during the work refusal. Such refusal to work requires employer investigation in accordance with OHS legislation and an employee may be entitled to pay during the investigation. If no one in the workplace has a pandemic related illness, or symptoms of it, and the employee refuses to work out of fear of contracting it, the employee will not likely be entitled to pay for the period of work refusal.

These few suggestions are in no way the complete picture of the employer's legal obligations or responsibility to employees during a pandemic outbreak. It is merely an encouragement to review your practice and procedure during a time when these issues are current, for a time when they may become critical. This recent influenza outbreak should remind employers of obligations to their employees, and applicable OHS considerations.

Stay well. Take care.

© 2009, Pitsel and Associates Ltd.
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