# 3421
The story below concerns Canadian employer rights, and potential liabilities, during a pandemic.
While the laws and regulations may differ between countries, most countries (including the U.S.) require that employers provide a `safe working environment’ for their employees.
With that in mind, employers and managers everywhere would do well to read this article, which appears today in The Financial Post.
This article is written by an employment lawyer, and is based on Canadian Law.
When you return, we’ll talk a bit in general about employer liability during a pandemic, and some steps you may want to consider taking now, before flu season is upon us.
Flu highlights issues around employer rights
By Howard Levitt, For Financial Post; Canwest News Service
June 29, 2009
Photograph by: Joe Raedle, Getty Images
If there is any hint that an employee may be a carrier and that employee is not immediately forbidden to attend work, the damages could be incalculable. A class action against such an employer by infected employees, suppliers and customers could decimate the strongest balance sheet.
Whatever nomenclature is used, "swine flu" or H1N1 influenza A, the fear of its spread is discombobulating. Already struggling with a sick economy, employers now must countenance a new pandemic with additional deadly financial and reputational liability. Employers should now audit their readiness for crisis.
The courts require employers to provide a safe workplace. If there is any hint that an employee may be a carrier and that employee is not immediately forbidden to attend work, the damages could be incalculable. A class action against such an employer by infected employees, suppliers and customers could decimate the strongest balance sheet. Apart from a lawsuit, imagine the impact of a news report on the breakout of swine flu on, say, a retail chain's business?
Employers should implement policies relating to infectious diseases. Those policies must prohibit employees with any symptoms from attending the workplace and require them to seek immediate medical attention. A notice should be circulated delineating the disease's symptoms and requiring any employees experiencing them to self-report. An employee who fails to comply should be disciplined.
The employee should then be interviewed (by telephone or e-mail) as to who they encountered in the company during the preceding few days. Those employees, in turn, should be sent home and required to be tested immediately. For the purposes of the investigation, to the extent there is a conflict, the rights of your remaining employees to a safe workplace supercede the right of the ill employee to confidentiality.
Employment law differs not only from one country to another, but even between states here in the United States. Regardless of what you read in the article above, or in my comments, you should always seek the counsel of a competent attorney in your locality who is well versed on employment law.
I’m not going to try to critique the article above because I have no idea what is, or isn’t the law in Canada.
I would point out, however, that sending employees for testing if they’ve been exposed to the virus – as is suggested above - is probably futile.
Already, public health officials are declining to test any but the most severely ill patients for the swine flu virus. The rapid tests are notoriously inaccurate, and unless someone is already showing symptoms, even more unreliable.
And while there may be legal precedent (under Canadian law) for forcing employees to work during a pandemic if the workplace has been `certified safe’ by government inspectors, I can envision a lot of cases where that could backfire.
That said, employers both here in the US, and around the world, are facing a serious challenge with this pandemic. Most are probably oblivious to their exposures – not to the virus – but to possible litigation.
Here in the US, OSHA has been printing `guidance documents’ for several years, encouraging employers to get their workplaces ready to deal with a pandemic. Some examples:
Guidance on Preparing Workplaces for an Influenza Pandemic (PDF - 313 KB) (Occupational Safety & Health Administration)
Provides guidance and recommendations on infection control in the workplace, including information on engineering controls, work practices, and personal protective equipment, such as respirators and surgical masks.
Guidance for Protecting Workers Against Avian Flu (Occupational Safety and Health Administration)
You’ll find more at OSHA’s Worker Safety and Health Guidance for H1N1 Flu.
Obviously, following the OSHA guidelines for a pandemic are a good idea, even if you discount the legal liability angle. These measures should help reduce absenteeism, and will probably help keep your business running during a pandemic.
While these are technically `suggestions’, and not regulations, they certainly have the potential of being referred to as `exhibit A’ in some courtroom down the road.
You see, there is a generic clause in the OSH act of 1970 which allows that:
Pursuant to the OSH Act, employers must comply with hazard specific safety and health standards as issued and enforced either by OSHA or by an OSHA-approved State Plan.
In addition, Section 5(a)(1) of the OSH Act, the General Duty Clause, requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.
I’m not a lawyer, but I have to imagine that convincing a jury that a declared pandemic wasn’t a recognized hazard likely to cause death or serious physical harm would be quite a trick.
This issue is addressed, at least marginally, on the HHS’s pandemic flu site, with this question and answer.
Answer:
It is possible, especially in cases where you knew about these health concerns and failed to take the appropriate action (i.e., reasonable steps to mitigate the possible affects including instituting social distancing, good hygiene and infection control practices in the workplace).
The Department of Labor's Occupational Safety and Health Administration has provided workplace safety and health guidance that will help employers prepare for an influenza pandemic.
This isn’t legal advice . . . but, if I owned a company (or was part of management of one), I would seriously consider talking to my legal department about my potential liability during a pandemic.
While there is still time to do something about it.
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