Will swine flu make a dramatic return this autumn? Reports that the bug could come back more potently during the autumn and winter have spawned sensational headlines claiming it could be the beginning of the end for many businesses.
Mark Serby, employment solicitor at Wake Smith & Tofields, has looked behind the media hype to advise employers on what they should consider to protect themselves and their employees.
He says: "Suggestions that swine flu could cost UK business £8.6 billion through staff absence may be based on some accurate statistics, but absence management company FirstCare*has found that employees infected with the swine flu virus take an average of 4.3 days off work but that these reports are at best estimates.
e big numbers suggested are merely projections but have seemingly attracted enough attention to fuel wide spread panic amongst employers across the region.
"There will undoubtedly be a cost to businesses through staff absence particularly with employees who are required to care for ill relatives or children. There is a right for those employees with caring responsibilities for dependents to take necessary unpaid time off, in certain 'necessary' circumstances.
This right will extend to circumstances where, for example, a school is closed or other unexpected disruption. However, this is only in situations where time off is 'necessary', taking into account the circumstances of the individual employee but only a reasonable amount of time necessary to deal with the immediate crisis.
He went on: "Other suggestions that businesses might be liable for tens of thousands of pounds if their employees contract the virus at work are unlikely to survive legal scrutiny. As with any claims of such nature, there will be a burden on the employee to prove the virus was contracted at work and that the company failed in its duty to take reasonable steps to protect the health and welfare of its employees.
"Most employers have already adopted a sensible and pragmatic approach to employees who are suffering from symptoms related to swine flu.
Kevin suggests a number of 'measured and proportionate' steps employers can take to protect themselves and their employees
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Consider an action plan to deal with the effects of any emergency, whether it be a pandemic or something altogether different. It may be that the company has key employees whose absence may cause immediate administrative or functional difficulties. In such circumstances, consider how their absence may be covered in the short and medium term by other employees.
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Alternatively, consider the possibility of home working and remote access to the office systems, files and support. Technology is readily available to facilitate remote working which will cut down the risk of further infection across the firm. Bear in mind health and safety requirements related to home working, where workstation assessments are likely to be necessary.
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Of course, a company should not force an employee to work if he or she is unfit to do so. If the flu is contracted it can affect different people in different ways. Where an employee does not exhibit flu like symptoms, but is caring for a relative, it may be that they are happy to work from home.
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Be aware that the Government is considering the period of self-certified absence from work from 7 days to 14 days where swine flu is suspected. Any company policies should be relaxed in accordance with the Government's guidance.
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It may also be worth thinking about pulling together a database of former or previously-retired staff who could be contacted at short notice to assist on a temporary basis.
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Make it clear to employees that they have an obligation to care for themselves, their colleagues and a responsibility to the company. Regular hand washing, antibacterial hand gel, information posters and regular emails or other communications providing advice to employees will all help avoid unnecessary absence and limit any risks to the company.
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Don't actively encourage an employee to return to work who is not fit to do so. According to official guidance, following the development of flu-like symptoms people should stay at home for seven days during the incubation period. Forcing employees to attend work where it may be a risk to their own health and safety or that of others may result in a claim of constructive dismissal. Alternatively, sending perfectly fit employees home just to be on the safe side may amount to a breach of contract.
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Don't panic! With careful assessment, contingency planning and a sensible approach, there is no reason why swine flu should have any more than a minimal impact on your business.
Mark adds: "These suggestions are not guaranteed to prevent the predicted effects of swine flu on your business, but they might just help. After all, in both a medical and a legal sense: prevention is better than cure."
For more information and advice on the legal issues surrounding swine flu please contact the Employment team at Wake Smith on 0114 266 6660 or email [email protected].
*Quote from Human Resources online news centre at http://www.hrmagazine.co.uk/
