Suing for Swine Flu: Are Employers Risking H1N1 Swine Flu Lawsuits?

It seems every few years there is a new killer virus on the horizon. In the 1990’s it was the Ebola Virus. In 2007 it was the Avian Influenza (Bird Flu). And in 2008 it was the H1N1 Influenza, Swine Flu (Mexican Flu). Approximately 36,000 Americans die from flu each year. However, experts at the the Centers for Disease Control and Prevention (CDC) believe the next flu season may be far worse. They are projecting that twice the number of people who typically get sick during the normal flu season may contract swine flu, caused by the H1N1 virus.

Fear of H1N1 Flu Outbreak

With the 2009 H1N1 flu season upon us, fear another H1N1 flu outbreak is reaching a feverish pitch. The flu season is expected to peak in mid-to-late October and may affect as many as 32% of the U.S. population. Many private and public schools have taken an aggressive approach by creating new regulations stipulating that children may not attend school if they have a fever or other flu symptoms. If a child generated flu like symptoms at school, they are to be quarantined and sent home immediately. Additionally, children must be symptom free for at least 24 hours before they will be allowed back to school. Most pediatricians are also recommending that parents vaccinate their children with the seasonal flu vaccine, as well as the new H1N1 swine flu vaccine.

Business Swine Flu Preparation

But what about employers? Have they changed their PTO (Part Time Off) or Sick Day policies to reflect the growing concern over this flu season? Do employees have any recourse against their employer if they contract the H1N1 Swine Flu from a co-worker? Are employers risking lawsuits because they pressure or require employees not to take time off, come into work even if they are sick, or limit the number of sick days available annually? Are employers underestimating the threat?

Will this open up a new practice area for personal injury lawyers to specialize in? We live in litigious times and many people are quick to sue. And what about teachers who contract measles, chicken pox, TB and more from children who were not vaccinated for the diseases? Are the parents liable?

Can employers mandate that their employees receive a flu shot? In North Carolina, swine flu sufferers must comply with a Draft Isolation Order which can mean up to two years jail time for those who don’t quarantine themselves.

In this video, Dr. Joe Bresee, with CDC's Influenza Division, describes the symptoms of swine flu and warning signs to look for that indicate the need for urgent medical attention. See this video with subtitles on YouTube

White House View on Swine Flu

The President’s Council of Advisors on Science and Technology (PCAST) released a report on August 24, 2009 assessing the preparations for the H1N1 2009-2010 flu season. The report stated that the current H1N1 flu strain "poses a serious health threat" to the nation. While worldwide projections are hard to come by on the number of people who are expected to contract the H1N1 Swine Flu, nor the number of projected causalities. Children and the elderly are the highest risk.

Employers need to take a look at their existing policies to ensure that there is verbiage stating that any employee who develops flu like symptoms should be sent home immediately and should not be allowed to return until they had been symptom free for at least 24 hours, or allow those employees whose job can be performed virtually, the ability to telecommute.

Swine Flu Productivity Impact

Work place productivity will suffer more if you take a hard-line approach to sick day policies. Employers must realize that having 1 employee out sick is better than 10 because the sick employee felt they must go into work. If they don’t it could be very costly if someone becomes seriously ill, or even dies from contracting H1N1 Swine Flu at work due to lax health and safety procedures. To ensure employees aren’t needlessly taking time off, a doctor’s note confirming the infection should be required.

While we are still learning about the H1N1 Flu and how it will mutate each year, we must remember that each year 36,000 people die from the seasonal flu each year in the United States.

In reality, how equipped are employers for a potential swine flu pandemic? A new Harvard School of Public Health survey finds most employers aren’t prepared for the potential extreme absenteeism the H1N1 flu may have on their worksites. About two-thirds of 1,057 HR personnel surveyed say their companies would face “severe operational problems” if half their workers were out for two weeks because of H1N1 swine flu.

Are Businesses Taking the Threat Seriously?

The Centers for Disease Control and Prevention continue to warn employers about potential widespread absenteeism that the H1N1 virus can cause. A survey conducted by the National Opinion Research Center at the University of Chicago found that 68% of workers without paid sick days have gone to work with the flu or another illness. The survey also found that 1 in 6 workers (or a family member) has been reprimanded, suspended, threatened with being fired, or fired for taking time off because of an illness, or to care for a sick family member.

You cannot completely protect yourself from catching some form of influenza, but you can reduce the risks of catching the flu virus.

Advice for Employers

It’s always difficult to plan for something unpredictable, but it is always better to err on the side of caution. Below are the CDC’s swine flu tips for employers:

1. Establish an influenza pandemic plan. Get employees involved in developing it.
2. Test your plan to spot problems before flu season hits.
3. Estimate your company’s normal seasonal absenteeism rates and how you’ll monitor any unusual increases in absenteeism during the flu season.
4. Stay up-to-date with any local outbreaks by regularly checking with your state and local health departments
5. Let sick workers stay at home or telecommute without worry of repercussion.
6. Develop more flexible leave policies so workers can stay home to care for sick family members, or be at home if schools or childcare programs are closed.
7. Communicate any changes to policies concerning flexibility with leave, pay and benefits changes, etc.

The CDC’s guidance page offers additional tips for businesses. Flu.gov also offers helpful tool kits and fact sheets for employers to distribute.

Advice For Employees

1. Stay Home: Do not come to work if you have a fever , a productive cough or other signs of a flu (headaches, body aches, coughing, sneezing)
2. Cover your mouth with your elbow or a tissue when sneezing or coughing
3. Hand washing: It’s the single most effective method of preventing the flu
4. Keep hand sanitizer in your purse, pocket and car. It’s a great way to protect yourself on the go.

Advice for Parents of School Aged Children or Parent’s of Children in Daycare

1. Teach your children to cough in their elbow or in a tissue
2. Always wash their hands before eating and after using the bathroom or other public areas.

Swine Flu Advice

Don’t give your children an over-the-counter drug to mask the symptoms, and then drop them off at school. You are selfishly masking the problem and risk infecting other children and their families. When your child is sick, KEEP YOUR CHILD HOME! Children have been proven to be the primary transmitters of viruses.

The Reality

Swine flu cases against employers are already being filed. One case is that of Mitchell Weiner, 55, a New York City teacher who died of swine flu. His family is suing his former employer for $40 million. The complaint? They claim the employer did not provide a safe workplace. Smart companies are already rewriting their current policies. Having a plan in place is crucial for employees and your bottom line. Is your company ready?

What is your opinion? Should employees be able to sue employers for contracting the H1N1 Swine Flu?

About the Author: Chelsey Langan