business

After a quiet summer on the flu front, employment lawyer Rebecca Bernhard noticed a decided uptick in inquiries when it got cold earlier this month from business clients asking what they can and should do if the H1N1 virus visits their workplace.

Sitting in her St. Cloud office for the Minneapolis firm of Gray Plant Mooty, attorney Jackie Schuh experienced a similar increase in calls seeking advice from clients around Minnesota about what to do if the virus surfaces in the workplace.

The employers had a range of questions for the attorneys. Could they mandate employee vaccinations? Could they require families of workers to be vaccinated? Did they have to pay workers sent home who lacked sick leave? Could they ask people to work from home if they are sick? What about workers who had to stay home and tend to sick kids?

"This potential for an outbreak is probably over-hyped, but you'd hate not to be worried about it," said Bernhard, a member of the labor and employment practice group at the Minneapolis firm of Oppenheimer Wolff & Donnelly. "This is probably the first year that I've received calls about the flu."

Indeed, the 2009-2010 flu season is off to a busy start for Minnesota employment lawyers as the state is among 37 reporting "widespread influenza activity" to the Centers for Disease Control and Prevention.

There also have been several deaths in the state this year due to the H1N1 virus -- at least six in the past month -- and schools have been reporting higher-than-average absences due to flu-like symptoms.

So public attention is focused on the pandemic flu.

"Employers have known for a while that they could face poor work attendance," said Judy Langevin, another employment attorney with Gray Plant Mooty. "Now the focus is: 'How can we make the impact as low as possible?'"

Langevin and Schuh start with the very basics for employers, such as urging them to post signs about the importance of hand washing and providing Lysol spray in bathrooms and antiseptic wipes for common use areas such as conference rooms.

But attorneys also are advising businesses to have policies in place about missing work, working from home and tending to sick kids. They also stress the importance of making sure that employees know what those policies are before they need to stay home to recover or tend to members of their family.

"Employers need to treat people consistently," said Beth Papacek of Leonard Street and Deinard. "If employees are aware of what the rules are, they know the consequences if they miss work and there will be no surprises."

Such detailed and well-defined policies provide a defense should legal challenges arise.

Langevin said she's been asked by employers if they can require workers to get vaccinated. "It's probably not a good idea," she said, citing employee protections under state and federal law regarding disability, privacy and discrimination.

"Just the fear of flu is not going to qualify as an exemption from those rules," Langevin said.

Bernhard said the question she gets most from employers is, "Can I send someone home?"

"Probably," Bernhard said. But she urges employers to show flexibility with policies governing paid time off. "You might want to pay for that day off, even if sick time is exhausted," she said. "I recommend giving employees an advance on their sick time and letting them pay it back later."

But that kind of flexibility is not always there.

"The answer is, one size doesn't fit all," said Papacek. "A lot of these decisions are driven by company culture. Some say they'll make sure workers won't lose pay, but others are more policy driven and if an employee doesn't have sick time, they won't get paid."

Employers also will face issues with employees who travel as part of their jobs, particularly those in sales. Airports and airplanes are notorious for acting as human petri dishes when it comes to the transmission of airborne diseases.

The solution may lie in more teleconferencing and Web visits, said Bernhard. "You want to have those folks producing, but there's a lot of tension out there [over travel]."

The notion of working from home also is open to debate because not all job duties can be performed off site. Retail and manufacturing operations, for instance, need bodies on the floor. To guard against workforce shortages, many businesses have done cross training so they can get by with fewer workers for short periods.

The other issue involving work from home is timekeeping.

"The biggest concern about working from home, aside from the logistics, is the issue of hours and getting paid for time worked," said Papacek. "If you're in the office, it's easier to track the number of hours worked. For those working at home, employers need to instill in employees the need to keep accurate track of their time."

The potential for an H1N1 outbreak puts pressure on businesses to plan and act prudently, say experts in employment law.

"They have an obligation to provide a safe environment and to address risks head on and in a reasonable manner," said Schuh.

David Phelps • 612-673-7269