MT Expert - Legal: How to plan for swine flu

DLA Piper's Tim Marshall on how businesses should prepare themselves for a swine flu pandemic.

Last Updated: 31 Aug 2010

Since April 2009, thousands of individuals across the UK have developed swine flu.  For most, the symptoms have been mild and employers could perhaps be forgiven for being complacent.  However, the Government is warning of a predicted 'second wave' of cases in the autumn and, with the Federation of Small Businesses reporting that if swine flu was to affect one in four employees, it would cost businesses an estimated £7.5bn per week, there is a  real risk that swine flu may still have a devastating effect on business.  

The main impact is employee absence. There is a risk that, if the pandemic worsens, schools may close, which would lead to even higher levels of staff absence. Employers should devise a strategy for managing absence which may include:

• identifying a source of back-up labour, for example agency workers
• identifying staff with interchangeable skills who can provide cover
• training staff to cover key functions and roles
• investing in and/or utilising technology to allow employees to work from home.

If staff are called on to cover absences, employers must ensure that they do not breach legal restrictions on working hours

Reducing the risk of employees developing swine flu, and managing those who do develop symptoms, is key to keeping business running smoothly. An effective strategy should include:

• keeping abreast of government advice and communicating this to staff
• updating contact details of staff and circulating emergency contact details of key staff
• carrying out a risk assessment
• ensuring good hygiene practices in the workplace
• displaying signs advising of symptoms and steps to reduce the risk of contracting the virus
• asking employees to report to HR if they have flu-like symptoms
• asking unwell employees to stay at home

In normal circumstances, employers are not entitled to prevent employees from coming into work unless this is provided for in the contract of employment. Unilaterally imposing changes to an employee's working conditions by preventing them from coming into work could even give rise to claims for constructive dismissal.

Employers should review and update any policies or procedures which may be affected by an outbreak of swine flu. These are likely to relate to sickness absence, dependent care leave and flexible/home working.  Particular issues to consider include:

• whether an employee with swine flu should be GP-certified as fit to return to work before coming back
• extending flexible or home working arrangements to emergency situations
• whether the right to take leave to care for dependents should be extended
• whether any special leave should be paid or unpaid

Important changes to working practices should be effectively communicated to employees.  

Tim Marshall is UK Head of Employment at DLA Piper.

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