Transcript H1N1: Helping HR Prepare Presented by: Anna M. Dailey, Esq.

W W W . D I N S LA W . C O M
H1N1: Helping HR Prepare
Presented by:
Anna M. Dailey, Esq.
Jennifer Orr Mitchell, Esq.
Dinsmore & Shohl LLP
Dinsmore & Shohl LLP
[email protected]
[email protected]
Pandemic Expectations In The Workplace

Past 3 pandemics (1918, 1958, 1968)
–
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30% of population became ill
50% sought medical care

Homeland Security’s Expectation for 2009-2010 Flu Season
– Scenario One

30 to 40% of population will be impacted by flu

Transportation restrictions and disruptions to movement of
essential supplies

Voluntary and directed closures of schools
© 2009 Dinsmore & Shohl LLP
Scenario One – Cont’d

Social distancing which will affect production, face-to-face purchasing,
access to banks

Delays in service & maintenance provided by municipalities, utilities, etc.

Inundation of healthcare facilities & providers

For Impacts of Scenarios Two & Three, see Homeland Security’s Guide for
Critical Infrastructure and Key Resources at www.flu.gov (p. 32-33)
© 2009 Dinsmore & Shohl LLP
Today’s Topics

On-line government resources available to HR Managers & Businesses

CDC Recommendations for Employers

Flagging Employment Laws Impacting Pandemic Issues
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
Family Medical Leave Act (FMLA)
American With Disabilities Act (ADA)
Fair Labor Standards Act (FLSA)
Worker Compensation Laws
Issues Unique to Unionized Businesses
OSHA’s Guidance for Employers
Unique Requirements of HIPAA Privacy Rules
© 2009 Dinsmore & Shohl LLP
Government Resources for
Guidance & Planning

CDC; Homeland Security; Department of Health & Human Services &
DOL combined resources, providing website: www.flu.gov
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Guidance for business and employers
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Communication toolkit for business & employers
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Link to sign up for immediate updates by e-mail
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Guidance for critical infrastructure businesses
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ADA compliant Inquiry for current employers
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Question & Answer guidance document for typical employment scenarios
© 2009 Dinsmore & Shohl LLP
Preparedness, Response and Recovery
Guide for Critical Infrastructure and Key
Resources
Assistance to Businesses in Planning for Various Phases:
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Planning (p. 34)
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Preparedness (p. 45)
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Response (p. 53)
www.flu.gov
© 2009 Dinsmore & Shohl LLP
CDC Recommendations To Employers
Under Current Flu Conditions

Advise sick employees to stay home until 24 hrs. after
fever gone

Encourage respiratory etiquette & hand hygiene

Separate employees who become sick; ask to go home

Routinely clean surfaces that get frequent hand contact

Encourage employees known to be at risk for
complications to seek medical care ASAP
© 2009 Dinsmore & Shohl LLP
CDC Advice – cont’d

Encourage flu vaccines for employees

Prepare employees to perform your business’ essential
functions – including cross-training

If your employees travel for work, provide them
information regarding flu issues in other countries/states
© 2009 Dinsmore & Shohl LLP
CDC’s Advice If/When Flu Season Worsens

Screen employees when they arrive at work

Consider extending sick leave policy this season for
employees with flu symptoms to ensure they stay home 7
days

Changing duties, work spaces, schedules for employees at
higher risk for complications

Implement plan for continued essential business functions
© 2009 Dinsmore & Shohl LLP
Worsened Conditions – cont’d

Make contingency plan for increased absenteeism
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Increase social distancing at work
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Cancel non-essential face-to-face meetings
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Cancel non-essential business travel
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Use conference calling
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Offer tele-work or flexible hour options
© 2009 Dinsmore & Shohl LLP
Flagging Relevant Employment Laws Impacting
Pandemic Issues
© 2009 Dinsmore & Shohl LLP
FMLA – Family Medical Leave Act

Covers Employers with 50 Employees within 75 mile radius
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Under FMLA employers must provide employees with up
to 12 weeks unpaid leave
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To care for spouse, son/daughter or parent with serious health
condition
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For employee’s own serious health condition
© 2009 Dinsmore & Shohl LLP
Definition of Serious Health Condition
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Illness, impairment or physical/mental condition
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Overnight stay or continuing treatment by health care
provider; and
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Condition that prevents someone from performing job
© 2009 Dinsmore & Shohl LLP
Continuing Treatment
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Incapacity of more than 3 consecutive calendar days
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2 visits to health care provider or 1 visit and regimen of
continuing treatment
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Incapacity due to chronic health condition
© 2009 Dinsmore & Shohl LLP
Employee Responsibilities Under FMLA
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Provide notice to employer as soon as practicable
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Comply with employer’s call-in procedures
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Provide information to support absence is due to serious health
condition and probable length of absence
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Identify if leave is related to earlier certified FMLA approved leave
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If required by the employer, provide certification from medical
provider supporting need for leave
© 2009 Dinsmore & Shohl LLP
Employer’s Obligations Under FMLA
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Inform employees if they are eligible for FMLA leave and, if
not, why not eligible
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Inform employees if leave will be FMLA protected & the
amount of leave to be counted against their FMLA leave
time
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If the employer determines a requested leave will not be
covered by FMLA, inform employee
© 2009 Dinsmore & Shohl LLP
FMLA Allows Substituting Paid Leave
For Unpaid Leave
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At option of either employee or employer
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Employer can require employee to use accrued paid leave
while also counting absence as FMLA leave

Employees must comply with employer’s paid leave
policies which do not conflict with FMLA
© 2009 Dinsmore & Shohl LLP
ADA – Americans With Disabilities Act
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Generally applies if you have 15 or more employees
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Protects a disabled person from discrimination in the
workplace when he/she is qualified to perform the
essential functions of the job, with or without reasonable
accommodation
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Disability is any physical or mental impairment that
substantially limits one or more of an individual’s life
activities
© 2009 Dinsmore & Shohl LLP
Reasonable Accommodations
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Can include:
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Rearranging existing facilities or workplaces
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Job restructuring
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Part time, modified or flex time schedules
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Adjustment of policies
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Reassignment to a vacant position and/or leave of absence
© 2009 Dinsmore & Shohl LLP
Reasonableness of Accommodations
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Accommodation is not reasonable if it imposes an undue hardship on
employer
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Determining what is reasonable requires an informal interactive
process
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Employer need not agree to a particular accommodation requested if
unreasonable
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If employee refuses a reasonable accommodation and cannot perform the
essential functions of job, he/she is no longer a qualified person under ADA
© 2009 Dinsmore & Shohl LLP
More On Reasonableness of
Accommodations – Cont’d

Persons with chronic health conditions (diabetes, immune
deficiency disorders, etc.) may, depending on individual
circumstances, qualify as disabled or perceived to be
disabled
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AND they are at higher risk of complications with H1N1
and other influenzas
© 2009 Dinsmore & Shohl LLP
Informing Others of Employee’s Need
For Accommodation or Nature of Disability
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Once person hired, employer may inform supervisors &
managers of necessary restrictions or accommodations
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Allows employer to inform first aid & safety personnel when
appropriate
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ADA says nothing about allowing the sharing of information
with co-workers; look to HIPAA for guidance
© 2009 Dinsmore & Shohl LLP
ADA & Medical Inquiries
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ADA allows pre-employment inquiries into ability of an
applicant to perform job related functions
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However, ADA does not allow an employer to require
responses to medical inquiries for current employees
unless it is job related & consistent with business
necessity
© 2009 Dinsmore & Shohl LLP
ADA Does Allow for Some Planning
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Employer can conduct voluntary medical histories, subject to
confidentiality requirements
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Employer can survey workforce for personal information needed for
pandemic preparation but only if employer asks broad questions, not
limited to disability-related inquiries
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Treat non-medical reasons for absence during a pandemic (such as
school closings or curtailed public transportation) the same as medical
reasons
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www.flu.gov provides sample ADA compliant survey
© 2009 Dinsmore & Shohl LLP
© 2009 Dinsmore & Shohl LLP
Adopting Infection Control Practices
In The Workplace
Nothing in ADA prohibits an employer from:
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Requiring regular hand washing, coughing and sneezing
etiquette
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Tissue usage and disposal etiquette
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Personal protective equipment (i.e. face mask, gloves,
gown)

May need to accommodate allergies to latex
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Provide gowns for use with wheelchairs
© 2009 Dinsmore & Shohl LLP
Other Workplace Infection
Control Practices
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Employer can encourage or require tele-work
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Separated workspace and tele-work may be considered
reasonable accommodations
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Employers must not discriminate against any protected
class in requiring, granting or denying tele-work options
© 2009 Dinsmore & Shohl LLP
Practical Advice
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Consider announcing in advance that absences for up to 7
days will be excused for all persons who self-disclose in
survey
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Persons already in discipline process for excessive
absences (not FMLA-covered) will be required to provide
medical certification
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Determine what social distancing your workspace could
accommodate, if any
© 2009 Dinsmore & Shohl LLP
FLSA – Fair Labor Standards Act
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Regulates hours & wages of employees engaged in interstate
commerce
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Sets statutory minimum wage for all hours worked
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Requires overtime pay for hours over 40 in a week
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Employ means “to suffer or permit to work”
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Exceptions for certain types of employees (exempt vs. non-exempt)
© 2009 Dinsmore & Shohl LLP
FLSA – Cont’d
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Employees doing non-requested work, with knowledge of
employer, must be paid
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Includes “homework” performed with employer’s knowledge
It is the employer’s duty under FLSA to stop an employee
from doing work the employer does not want done
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Requires policies to be “published” to employees
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Specific instructions needed how long to work
© 2009 Dinsmore & Shohl LLP
FLSA – Cont’d
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Does not require paid sick leave
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Paid absences do not count as work time under FLSA
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On duty time spent waiting for work counts as work time
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“Comp time in lieu of overtime” must be limited to same pay period
which restricts use of comp time
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Requires careful recordkeeping
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Employee not allowed to waive right to overtime or minimum wage
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Employees cannot volunteer their work time to an employer
© 2009 Dinsmore & Shohl LLP
FLSA & Pandemic Issues
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If you permit working from home, there must be clear instructions
about number of hours being worked. Think through whether paying
for wait times
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Be clear about whether mealtime / breaks will be paid while employee
working from home
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Keep & require careful records of time, reviewing regularly
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Keep track of overtime hours for persons having to stay longer hours
due to substantial absences of others
© 2009 Dinsmore & Shohl LLP
FLSA & Pandemic Issues – Cont’d
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Monitor exempt employees working longer hours so they
do not fall below minimum wage
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Exempt employees who take over the manual job duties of
non-exempts may become subject to overtime provisions
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FLSA does not limit types of work employees may be
assigned or required to perform
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Some limits for persons age 17 or younger
© 2009 Dinsmore & Shohl LLP
Possible Worker Compensation Scenario
An employee contracts the flu and is absent for one month
due to complications. Can the employee fairly expect to be
covered under your state’s Worker Compensation statutes
if claims he/she contracted the flu at work?
© 2009 Dinsmore & Shohl LLP
Worker Compensation Issues
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Designed to offer medical & financial benefits to workers "injured" in
the scope of their employment
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Includes:
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Physical injuries resulting from accidents on the job (many states have
eliminated the "accidental" requirement)
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Occupational Diseases due to causes & conditions characteristic of &
peculiar to a particular occupation
© 2009 Dinsmore & Shohl LLP
Worker Comp & Communicable Diseases
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Employees claiming on the job exposure to communicable diseases,
testing either positive or negative, have been awarded benefits
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Typical employee - health care worker, prison guard, housekeeper.
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Burden of Proof:
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For Accidental Injury employee must prove when & where transmission
occurred i.e. on the job.
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For Occupational Disease must prove substantial connection between
the workers' occupation & the transmission of the disease.
© 2009 Dinsmore & Shohl LLP
Worker Compensation & H1N1
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Look at how state handles occupational disease claims of
HIV/AIDS, tuberculosis & other communicable diseases
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Because H1N1 is wide-spread, determining specifically
when & where it was contracted may be difficult.
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Expect that compensable claims will be limited to those
who have a substantial connection between their
occupation & the transmission of the disease i.e. health
care workers
© 2009 Dinsmore & Shohl LLP
NLRA
&
Unionized Employers
© 2009 Dinsmore & Shohl LLP
Issues Unique To Unionized Employers
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Negotiated Attendance Control Policies
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Contracting Out Bargaining Unit Work
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Supervisors Performing Bargaining Unit Work
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Prohibition on Assignments Outside Job Classification
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Contractual Restrictions on Overtime
© 2009 Dinsmore & Shohl LLP
Issues Unique To Unionized Employers –
Cont’d
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If contract does not permit needed flexibility:
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Treat as emergency - see arbitration decisions on emergency
situations
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Consider negotiating an MOU to cover possible pandemic needs
in order to maintain business
Anticipate allegations of unilateral changes – possible
defense; exigent circumstances must be proven by
employer
© 2009 Dinsmore & Shohl LLP
Unionized Employers
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Consider whether to negotiate with union over:
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Temporary modification of absenteeism policies & procedures
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Temporary changes to workplace rules and contracting out in order to maintain
business during pandemic situation
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Each employer’s circumstances with their union is different; one size does
not fit all
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Expect that most arbitrators will unlikely uphold discharges for excessive
absenteeism where there is proof of pandemic illness in a particular
workforce or community, despite an employee’s past history
© 2009 Dinsmore & Shohl LLP
OSHA – Occupational Health & Safety Act
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Requires employers to provide Safe & Healthful Working
Conditions
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OSHA can create standards that employers must follow
and can issue advisory guidance

See www.osha.gov/Publications/influenza_pandemic.html
for OSHA’s advisory Guidance on Preparing Workplaces
for an Influenza Pandemic
© 2009 Dinsmore & Shohl LLP
Sample of OSHA’s Advisory Guidance:
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Encourage sick employees to stay home
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Encourage hand washing & use of sanitizers
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Encourage cough & sneezing etiquettes
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Encourage employees to avoid touching face
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Employees should avoid close contact with co-workers,
maintaining at least 6 feet of separation & no handshaking
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Provide customers with trash receptacles and place to
disinfect hands
© 2009 Dinsmore & Shohl LLP
More of OSHA’s Advisory Guidance:
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Keep work surfaces, telephones, computers and other
surfaces frequently touched cleaned
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Discourage employees from using co-workers work
equipment
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Minimize crowding situations. Avoid meetings unless
properly ventilated, with 6 feet of separation space
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Reduce or eliminate social interactions
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Promote healthy lifestyles to better fight off & recover from
influenza
© 2009 Dinsmore & Shohl LLP
OSHA Also Recommends,
When Appropriate:
Engineering controls (i.e. internet, barriers, drive-throughs)
Administrative controls (policies, schedules,
communication)
Personal Protective Equipment (masks, gloves, gowns)
© 2009 Dinsmore & Shohl LLP
Practical Issues Re: www.flu.gov

The www.flu.gov website acknowledges employer/employee relationships
are governed primarily by handbooks, contracts, unique state laws and
federal laws. The website is not intended to be a substitute for legal advice.
Further, the website’s recommendations do not apply to federal, state or
local government employees.

If following a suggestion from the website, make a copy of materials
you relied upon if site changes.
© 2009 Dinsmore & Shohl LLP
www.flu.gov’s Sample Q & A for Employers

Can you require a doctor’s note or that someone be symptom
free for a specified time? (yes)
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Can you lay off someone who must care for sick family
members or who can’t make it to work because public
transportation is unavailable? (depends)
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Can you send symptomatic employees home? (yes) Can you
require them to use sick leave or paid time off? (yes) Must they
be paid? (depends) Can you prevent employees from coming
to work? (yes)
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Can you change paid sick leave policy if number of employees
absent and cannot afford? (depends)
© 2009 Dinsmore & Shohl LLP
More www.flu.gov’s Sample
Q & A for Employers
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Can employee stay home to avoid getting the flu? (depends)
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Can you mandate employees stay home if members of family
have the flu? (yes)
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Can an employee refuse a job assignment? (usually not)
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Can a business become liable if employees contract flu?
(possibly)
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Can an employee close its business to customers or employees
known to have contacted or been exposed to pandemic flu?
(yes, but …)
© 2009 Dinsmore & Shohl LLP
THE HIPAA PRIVACY RULE
Jennifer Mitchell
© 2009 Dinsmore & Shohl LLP
HIPAA Privacy Rule Considerations

The HIPAA Privacy Rule limits the ability of “covered entities” (health plans,
most health care providers, and health care clearinghouses) and their
“business associates” to use and disclose “protected health information”
(PHI), except as permitted by the HIPAA Privacy Rule.
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Employer health plans are covered by the HIPAA Privacy Rule, but
employers generally are not otherwise covered (unless their line of
business makes them either a health care provider or clearinghouse).
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Employment records are carved out of the HIPAA Privacy Rule.
Be aware: People will cry “HIPAA” when it does not apply! Do you
know how to respond?
© 2009 Dinsmore & Shohl LLP
HIPAA Privacy Rule Considerations
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Public health activities/disclosures by “covered entities” are protected by
the HIPAA Privacy Rule:
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to control disease, injury or disability and to conduct public health surveillance,
investigations or interventions;
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to notify a person who may have been exposed to a communicable disease or may
otherwise be at risk of contracting or spreading a disease or condition, if disclosure is
authorized by law or otherwise permitted using minimum necessary standard.
HIPAA Privacy Rule will have limited applicability in H1N1 response planning
of employers, but privacy concerns of employees are still important!
KEY: Ensure H1N1 plans do not involve or rely on PHI obtained from the
employers’ health plan.
© 2009 Dinsmore & Shohl LLP
HIPAA Privacy Rule Considerations
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Example:
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If an employee with H1N1 submits a request for leave along with the results of
his/her flu screening, the HIPAA Privacy Rule would NOT come into play.
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Why? Because the information was voluntarily provided to the employer
by the employee for employment purposes entirely unrelated to health
plan activities.
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This information was provided to the employer, not to the health plan.
Once in the possession of the employer, the HIPAA Privacy Rule does
not per se impose any obligation to maintain the information
confidentially.
© 2009 Dinsmore & Shohl LLP
HIPAA Privacy Rule Considerations

Employers may:
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Balance employee privacy rights with public and company health concerns
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Voluntarily test employees for H1N1 and pay for the test
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Require employees to be screened for H1N1 (particularly, employees
determined to be at risk) and have their results provided to the employer, with
a signed authorization from the employee

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This is more for the protection of the health care provider conducting the
test than it is for the employer
Provide information to employees regarding H1N1
© 2009 Dinsmore & Shohl LLP
HIPAA Privacy Rule Considerations

Once an employer has knowledge that an employee has H1N1, do
NOT disclose the employee’s PHI or identify the employee to others,
at least not without the employee’s authorization.
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Why?
 ADA provisions requiring confidentiality of medical information may be at
issue
 Risk of common law breach of privacy claim or defamation claim (under
state law)
 Consult counsel on how to handle all disclosures of information relating to
infected or potentially infected employees.
© 2009 Dinsmore & Shohl LLP
HIPAA Privacy Rule Considerations

Employers should:
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Train supervisors as to confidentiality issues and provide guidance as to how
to respond to employee questions
Establish H1N1 policies and procedures and distribute them to employees
Consider whether it makes sense for the company to designate someone as
the person responsible for handling all H1N1 employee information and
inquiries
Provide appropriate advance written notice to the employee, if it becomes
necessary to disclose information about an employee’s H1N1 infection
Check state medical privacy rules for applicability
© 2009 Dinsmore & Shohl LLP
Contact Information for Today’s Presenters
Anna M. Dailey, Esq.
Matthew Zahn, MD
Dinsmore & Shohl LLP
Medical Director
PO Box 11887
Charleston, WV 25339
304.357.0923
(Labor & Employment
Attorney)
© 2009 Dinsmore & Shohl LLP
Louisville Metro Health
Dept.
Jennifer O. Mitchell, Esq.
Dinsmore & Shohl LLP
255 E. 5th Street
Suite 1900
400 East Gray Street
Cincinnati, OH 45202
Louisville, KY 40202
513.977.8364
(Assistant Professor of
Infectious Disease at
Kosair Children’s
Hospital)
(Health Care Attorney)