H1N1: Helping HR Prepare

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H1N1 Helping HR Prepare
Presented by Anna M. Dailey, Esq. Jennifer Orr
Mitchell, Esq. Dinsmore Shohl LLP Dinsmore
Shohl LLP anna.dailey_at_dinslaw.com jennifer.mitche
ll_at_dinslaw.com
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Pandemic Expectations In The Workplace

• Past 3 pandemics (1918, 1958, 1968)
• 30 of population became ill
• 50 sought medical care
• Homeland Securitys 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

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Scenario One Contd

• 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 Securitys Guide for Critical
  Infrastructure and Key Resources at www.flu.gov
  (p. 32-33)

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Todays Topics

• On-line government resources available to HR
  Managers Businesses
• CDC Recommendations for Employers
• Flagging Employment Laws Impacting Pandemic
  Issues
• Family Medical Leave Act (FMLA)
• American With Disabilities Act (ADA)
• Fair Labor Standards Act (FLSA)
• Worker Compensation Laws
• Issues Unique to Unionized Businesses
• OSHAs Guidance for Employers
• Unique Requirements of HIPAA Privacy Rules

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Government Resources for Guidance Planning

• CDC Homeland Security Department of Health
  Human Services DOL combined resources,
  providing website www.flu.gov
• Guidance for business and employers
• Communication toolkit for business employers
• Link to sign up for immediate updates by e-mail
• Guidance for critical infrastructure businesses
• ADA compliant Inquiry for current employers
• Question Answer guidance document for typical
  employment scenarios

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Preparedness, Response and Recovery Guide for
Critical Infrastructure and Key Resources

• Assistance to Businesses in Planning for Various
  Phases
• Planning (p. 34)
• Preparedness (p. 45)
• Response (p. 53)
• www.flu.gov

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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

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CDC Advice contd

• 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

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CDCs 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

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Worsened Conditions contd

• Make contingency plan for increased absenteeism
• Increase social distancing at work
• Cancel non-essential face-to-face meetings
• Cancel non-essential business travel
• Use conference calling
• Offer tele-work or flexible hour options

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• Flagging Relevant Employment Laws Impacting
• Pandemic Issues

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FMLA Family Medical Leave Act

• Covers Employers with 50 Employees within 75 mile
  radius
• Under FMLA employers must provide employees with
  up to 12 weeks unpaid leave
• To care for spouse, son/daughter or parent with
  serious health condition
• For employees own serious health condition

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Definition of Serious Health Condition

• Illness, impairment or physical/mental condition
• Overnight stay or continuing treatment by health
  care provider and
• Condition that prevents someone from performing
  job

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Continuing Treatment

• Incapacity of more than 3 consecutive calendar
  days
• 2 visits to health care provider or 1 visit and
  regimen of continuing treatment
• Incapacity due to chronic health condition

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Employee Responsibilities Under FMLA

• Provide notice to employer as soon as practicable
• Comply with employers call-in procedures
• Provide information to support absence is due to
  serious health condition and probable length of
  absence
• Identify if leave is related to earlier certified
  FMLA approved leave
• If required by the employer, provide
  certification from medical provider supporting
  need for leave

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Employers Obligations Under FMLA

• Inform employees if they are eligible for FMLA
  leave and, if not, why not eligible
• Inform employees if leave will be FMLA protected
  the amount of leave to be counted against their
  FMLA leave time
• If the employer determines a requested leave will
  not be covered by FMLA, inform employee

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FMLA Allows Substituting Paid Leave For Unpaid
Leave

• At option of either employee or employer
• Employer can require employee to use accrued paid
  leave while also counting absence as FMLA leave
• Employees must comply with employers paid leave
  policies which do not conflict with FMLA

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ADA Americans With Disabilities Act

• Generally applies if you have 15 or more
  employees
• 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
• Disability is any physical or mental impairment
  that substantially limits one or more of an
  individuals life activities

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Reasonable Accommodations

• Can include
• Rearranging existing facilities or workplaces
• Job restructuring
• Part time, modified or flex time schedules
• Adjustment of policies
• Reassignment to a vacant position and/or leave of
  absence

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Reasonableness of Accommodations

• Accommodation is not reasonable if it imposes an
  undue hardship on employer
• Determining what is reasonable requires an
  informal interactive process
• Employer need not agree to a particular
  accommodation requested if unreasonable
• If employee refuses a reasonable accommodation
  and cannot perform the essential functions of
  job, he/she is no longer a qualified person under
  ADA

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More On Reasonableness of Accommodations Contd

• Persons with chronic health conditions (diabetes,
  immune deficiency disorders, etc.) may, depending
  on individual circumstances, qualify as disabled
  or perceived to be disabled
• AND they are at higher risk of complications with
  H1N1 and other influenzas

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Informing Others of Employees NeedFor
Accommodation or Nature of Disability

• Once person hired, employer may inform
  supervisors managers of necessary restrictions
  or accommodations
• Allows employer to inform first aid safety
  personnel when appropriate
• ADA says nothing about allowing the sharing of
  information with co-workers look to HIPAA for
  guidance

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ADA Medical Inquiries

• ADA allows pre-employment inquiries into ability
  of an applicant to perform job related functions
• 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

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ADA Does Allow for Some Planning

• Employer can conduct voluntary medical histories,
  subject to confidentiality requirements
• Employer can survey workforce for personal
  information needed for pandemic preparation but
  only if employer asks broad questions, not
  limited to disability-related inquiries
• Treat non-medical reasons for absence during a
  pandemic (such as school closings or curtailed
  public transportation) the same as medical
  reasons
• www.flu.gov provides sample ADA compliant survey

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Adopting Infection Control Practices In The
Workplace

• Nothing in ADA prohibits an employer from
• Requiring regular hand washing, coughing and
  sneezing etiquette
• Tissue usage and disposal etiquette
• Personal protective equipment (i.e. face mask,
  gloves, gown)
• May need to accommodate allergies to latex
• Provide gowns for use with wheelchairs

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Other Workplace Infection Control Practices

• Employer can encourage or require tele-work
• Separated workspace and tele-work may be
  considered reasonable accommodations
• Employers must not discriminate against any
  protected class in requiring, granting or denying
  tele-work options

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Practical Advice

• Consider announcing in advance that absences for
  up to 7 days will be excused for all persons who
  self-disclose in survey
• Persons already in discipline process for
  excessive absences (not FMLA-covered) will be
  required to provide medical certification
• Determine what social distancing your workspace
  could accommodate, if any

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FLSA Fair Labor Standards Act

• Regulates hours wages of employees engaged in
  interstate commerce
• Sets statutory minimum wage for all hours worked
• Requires overtime pay for hours over 40 in a week
• Employ means to suffer or permit to work
• Exceptions for certain types of employees (exempt
  vs. non-exempt)

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FLSA Contd

• Employees doing non-requested work, with
  knowledge of employer, must be paid
• Includes homework performed with employers
  knowledge
• It is the employers duty under FLSA to stop an
  employee from doing work the employer does not
  want done
• Requires policies to be published to employees
• Specific instructions needed how long to work

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FLSA Contd

• Does not require paid sick leave
• Paid absences do not count as work time under
  FLSA
• On duty time spent waiting for work counts as
  work time
• Comp time in lieu of overtime must be limited
  to same pay period which restricts use of comp
  time
• Requires careful recordkeeping
• Employee not allowed to waive right to overtime
  or minimum wage
• Employees cannot volunteer their work time to an
  employer

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FLSA Pandemic Issues

• If you permit working from home, there must be
  clear instructions about number of hours being
  worked. Think through whether paying for wait
  times
• Be clear about whether mealtime / breaks will be
  paid while employee working from home
• Keep require careful records of time, reviewing
  regularly
• Keep track of overtime hours for persons having
  to stay longer hours due to substantial absences
  of others

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FLSA Pandemic Issues Contd

• Monitor exempt employees working longer hours so
  they do not fall below minimum wage
• Exempt employees who take over the manual job
  duties of non-exempts may become subject to
  overtime provisions
• FLSA does not limit types of work employees may
  be assigned or required to perform
• Some limits for persons age 17 or younger

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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 states
  Worker Compensation statutes if claims he/she
  contracted the flu at work?

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Worker Compensation Issues

• Designed to offer medical financial benefits to
  workers "injured" in the scope of their
  employment
• Includes
• Physical injuries resulting from accidents on the
  job (many states have eliminated the "accidental"
  requirement)
• Occupational Diseases due to causes conditions
  characteristic of peculiar to a particular
  occupation

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Worker Comp Communicable Diseases

• Employees claiming on the job exposure to
  communicable diseases, testing either positive or
  negative, have been awarded benefits
• Typical employee - health care worker, prison
  guard, housekeeper.
• Burden of Proof
• For Accidental Injury employee must prove when
  where transmission occurred i.e. on the job.
• For Occupational Disease must prove substantial
  connection between the workers' occupation the
  transmission of the disease.

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Worker Compensation H1N1

• Look at how state handles occupational disease
  claims of HIV/AIDS, tuberculosis other
  communicable diseases
• Because H1N1 is wide-spread, determining
  specifically when where it was contracted may
  be difficult.
• 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

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• NLRA
• Unionized Employers

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Issues Unique To Unionized Employers

• Negotiated Attendance Control Policies
• Contracting Out Bargaining Unit Work
• Supervisors Performing Bargaining Unit Work
• Prohibition on Assignments Outside Job
  Classification
• Contractual Restrictions on Overtime

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Issues Unique To Unionized Employers Contd

• If contract does not permit needed flexibility
• Treat as emergency - see arbitration decisions on
  emergency situations
• 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

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Unionized Employers

• Consider whether to negotiate with union over
• Temporary modification of absenteeism policies
  procedures
• Temporary changes to workplace rules and
  contracting out in order to maintain business
  during pandemic situation
• Each employers circumstances with their union is
  different one size does not fit all
• 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 employees
  past history

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OSHA Occupational Health Safety Act

• Requires employers to provide Safe Healthful
  Working Conditions
• OSHA can create standards that employers must
  follow and can issue advisory guidance
• See www.osha.gov/Publications/influenza_pandemic.h
  tml for OSHAs advisory Guidance on Preparing
  Workplaces for an Influenza Pandemic

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Sample of OSHAs Advisory Guidance

• Encourage sick employees to stay home
• Encourage hand washing use of sanitizers
• Encourage cough sneezing etiquettes
• Encourage employees to avoid touching face
• Employees should avoid close contact with
  co-workers, maintaining at least 6 feet of
  separation no handshaking
• Provide customers with trash receptacles and
  place to disinfect hands

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More of OSHAs Advisory Guidance

• Keep work surfaces, telephones, computers and
  other surfaces frequently touched cleaned
• Discourage employees from using co-workers work
  equipment
• Minimize crowding situations. Avoid meetings
  unless properly ventilated, with 6 feet of
  separation space
• Reduce or eliminate social interactions
• Promote healthy lifestyles to better fight off
  recover from influenza

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OSHA Also Recommends, When Appropriate

• Engineering controls (i.e. internet, barriers,
  drive-throughs)
• Administrative controls (policies, schedules,
  communication)
• Personal Protective Equipment (masks, gloves,
  gowns)

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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 websites 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.

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www.flu.govs Sample Q A for Employers

• Can you require a doctors note or that someone
  be symptom free for a specified time? (yes)
• Can you lay off someone who must care for sick
  family members or who cant make it to work
  because public transportation is unavailable?
  (depends)
• 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)
• Can you change paid sick leave policy if number
  of employees absent and cannot afford? (depends)

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More www.flu.govs Sample Q A for Employers

• Can employee stay home to avoid getting the flu?
  (depends)
• Can you mandate employees stay home if members of
  family have the flu? (yes)
• Can an employee refuse a job assignment?
  (usually not)
• Can a business become liable if employees
  contract flu? (possibly)
• Can an employee close its business to customers
  or employees known to have contacted or been
  exposed to pandemic flu? (yes, but )

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• THE HIPAA PRIVACY RULE
• -
• Jennifer Mitchell

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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.
• 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).
• 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?

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HIPAA Privacy Rule Considerations

• Public health activities/disclosures by covered
  entities are protected by the HIPAA Privacy
  Rule
• to control disease, injury or disability and to
  conduct public health surveillance,
  investigations or interventions
• 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.

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HIPAA Privacy Rule Considerations

• Example
• 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.
• Why? Because the information was voluntarily
  provided to the employer by the employee for
  employment purposes entirely unrelated to health
  plan activities.
• 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.

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HIPAA Privacy Rule Considerations

• Employers may
• Balance employee privacy rights with public and
  company health concerns
• Voluntarily test employees for H1N1 and pay for
  the test
• 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
• 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

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HIPAA Privacy Rule Considerations

• Once an employer has knowledge that an employee
  has H1N1, do NOT disclose the employees PHI or
  identify the employee to others, at least not
  without the employees authorization.
• 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.

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HIPAA Privacy Rule Considerations

• Employers should
• 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 employees H1N1 infection
• Check state medical privacy rules for
  applicability

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Contact Information for Todays Presenters
Anna M. Dailey, Esq. Dinsmore Shohl LLP PO Box 11887 Charleston, WV 25339 304.357.0923 (Labor Employment Attorney) Matthew Zahn, MD Medical Director Louisville Metro Health Dept. 400 East Gray Street Louisville, KY 40202 (Assistant Professor of Infectious Disease at Kosair Childrens Hospital) Jennifer O. Mitchell, Esq. Dinsmore Shohl LLP 255 E. 5th Street Suite 1900 Cincinnati, OH 45202 513.977.8364 (Health Care Attorney)