Legal: practical steps for employers should take to protect staff from flu epidemic

An often overlooked phrase in Section 2 of the Health & Safety at Work Act 1974 is the duty to ensure, so far as is reasonably practicable, the health, safety “and welfare” of employees. This encompasses a duty to warn and, where necessary, protect employees from contagious diseases such as swine flu.

It is not about knee-jerk reactions such as advising staff to wear masks or stay away from work en masse. While swine flu is very contagious, it is only passed from person to person, not from animals or meat products; it is little different to the usual winter outbreaks.

So what is it “reasonably practicable” for an employer to do? Steps you should be taking now include:

¦ Providing staff with access to the latest government information and advice, via a business-wide email with links to the HSE and government’s websites, or by putting up posters in staff areas.

¦ Advising staff who show symptoms to stay away until completely recovered.

¦ Looking out for signs of employees forcing themselves to come to work even when they are plainly unwell.

¦ Encouraging staff to follow basic hygiene procedures such as regular handwashing, use of disposable handkerchiefs which are immediately thrown away.

¦ Suggesting staff who feel unwell take time off to visit their GP for a proper diagnosis.

¦ Providing alcohol handwash in restrooms.

¦ Reviewing cleaning arrangements. Swine flu is mainly transmitted by residual germs on surfaces such as door handles. Increasing cleaning frequency is likely to reduce the life of residual germs.

In some circumstances more drastic measures, such as temporary suspension of certain operations to reduce the spread of illness, may be necessary. Managing absence will pose organisational and staffing issues – and some tricky legal points such as what, if any, payments absent employees should receive. If a workplace has to close temporarily, an employee’s contract may provide for enforced holiday or lay-offs. If employees cannot attend because of their personal circumstances or travel facilities, there is unlikely to be a specific contractual term addressing this. Consideration will need to be given to issues such as the right to stay at home for emergency childcare, flexible working and home-working policies. Consider custom and practice in the context of occupational sick pay; the risk being that this has become a contractual right for employees.

Where there are no contractual terms addressing potential epidemics, employees may be prepared to agree short-term changes to their terms and conditions such as unpaid leave.

Particular consideration should be given to pregnant workers, asthmatics and those with impaired immune systems, who are likely to be more vulnerable to infection. Employers must ensure new or expectant mothers are not exposed to significant risk, including infectious diseases. This may require a temporary change in role, or paid suspension until the risk has passed.

What, then, of the headlines claiming that employers can expect a raft of civil actions from ill staff? These would be very difficult to prove compared with, say, legionnaires’ disease where the unusual nature of the illness coupled with the specific conditions make it far easier to pinpoint a source of infection.

The likelihood of an employer facing any sort of HSE or local authority enforcement action is extremely low for failure to provide swine flu advice, but responsible employers already recognise that this is not the driving force for a positive health and safety culture. It is well documented that healthy workplaces and healthy employees are better for business, so by taking a few simple steps to keep staff informed, good employers should reap the benefits of continued good attendance and productivity.