Pandemic outbreaks — Federal

All employers play a key role in protecting the health and safety of their employees during a pandemic outbreak. A “pandemic” is a global epidemic. There have been four such pandemics in the last century, prior to the 2020 COVID-19 outbreak:

• the Spanish Flu of 1918
• the Asian Flu of the 1950s
• the Hong Kong Flu of the 1960s
• the H1N1 Flu of 2009.

A pandemic can have a major impact on business operations. For example:

• employees may be forced to remain at home to care for family members

• multiple employees may fall ill at the same time

• employees may face childcare issues due to the closure of schools and day cares

• employees may refuse to leave their home due to sheer panic

• employers may be forced to close or severely limit operations due to governmental shut-down or stay-at-home orders.

These and other potential effects underscore the importance of disaster planning, making it crucial for employers to have a pandemic preparedness plan to minimize the risk and panic of employees and at the same time, provide continuity in business operations. Employers should:

• create or update a pandemic preparedness plan (PPP)

• provide employee training or a refresher course on the PPP

• engage the state and local health department to confirm channels of communication and methods for dissemination of local outbreak information

• review sick leave policies to make sure they are flexible and consistent with public health recommendations

• provide supplies, like tissues, soap and alcohol-based hand cleaners, as well as disinfectant cleaning supplies, to encourage healthy habits in the workplace

• take steps to prevent and reduce transmission among employees, vendors, and members of the public.

Pandemic preparedness plans

The Department of Health and Human Services and the Centers for Disease Control and Prevention have developed guidelines to assist businesses in planning for a global outbreak of influenza and other comparable catastrophes. More specifically, the CDC has issued guidance for businesses and employers to respond to the 2020 coronavirus pandemic, COVID-19.

A successful pandemic preparedness plan includes a variety of measures to protect workers and ensure that the business operations can continue. Specifically, a plan should:

• Consider triggers and procedures for starting and ending a pandemic response. These triggers may be identified with the assistance of local health officials.

• Establish a clear chain of command and communication that assigns responsibilities and duties and instructs both managerial and rank-and-file employees on the implementation and enforcement of the plan.

• Identify essential business functions and critical supply chains that are needed to keep the business running. Plan how the business will operate if a high number of employees must stay home or supply chains are interrupted.

• Conduct a workplace hazard assessment to identify infection risks and means to reduce or eliminate such risks.

• Create policies for flexible work leave (e.g. consider staggered shifts, telecommuting, other schedule adjustments).

• Be prepared if schools dismiss students or childcare programs close.

• Take into consideration the plan and policies already set forth by federal and local government authorities (city evacuation plans, plans for citywide immunization).

Preventing the spread of illness

A pandemic preparedness plan should identify, at a minimum, the following steps to keep employees from getting sick:

• Advise employees to stay home if they are sick. The Center for Disease Control (CDC) recommends that employees with flu-like symptoms stay home for at least 24 hours after they no longer have a fever or signs of a fever (have chills, feel very warn, have a flushed appearance or are sweating). A fever is defined at 100.4 degrees Fahrenheit or 38 degrees Celsius. In the context of COVID-19, the CDC has issued targeted guidance that provides for a longer period of self-isolation (14 days) and post-symptom recovery (three days). Because this guidance has changed over the course of the COVID-19 pandemic, it is important to check the CDC’s latest guidance, available at:
  • www.cdc.gov

• Encourage vaccines. Encourage all employees who want protection from infectious respiratory diseases like the flu or coronavirus to get vaccinated, if such vaccines exist.

• Encourage respiratory etiquette. This includes providing employees with an adequate supply of tissues and reminding employees to cover coughs and sneezes.

• Encourage hand hygiene. Employees should be encouraged to wash their hands with soap and water for at least 20 seconds. This is approximately the time it takes to sing “Happy Birthday.” Alternatively, employees should have access to alcohol-based cleaners with at least 60% alcohol.

• Separate employees. Separate employees who become sick at work from other staff. When appropriate, ask the ill employee to go home.

• Take action if an employee is suspected of having an infection. Perform deep cleaning of the employee's work areas. Inform those who came into close contact with the employee that they may have been exposed (without identifying the employee, as that is confidential medical information).

• Routinely clean surfaces and items. Virus can live on hard objects for up to several days, depending on a multitude of factors, and may spread when a person touches a hard surface or an object where the virus has landed and then touches his or her eyes, nose or mouth. Because hard surfaces and objects that are more likely to have frequent hand contact (such as computers keyboards, door handles, phones) they can be an ample source of employee contamination.

• Encourage contact with healthcare providers. Sick employees at higher risk of complications from the flu should be directed to contact their healthcare provider as soon as possible.

• Consider essential business functions. Prepare for employees to stay home from work and plan ways for essential business functions to continue. This may mean that extra stock of essential business product is ordered or that employee shifts are staggered, in order to ensure a sufficient number of employees are present in the workplace.

• Review engineering controls in the workplace. Consider improving building ventilation systems. Ensure the safety of building water systems after a prolonged shutdown.

• Provide information to overseas employees. 

• Provide information to employees overseas about what to do if they get sick.

Severe respiratory virus conditions

In addition to steps referenced previously, employers should take additional steps to prevent the spread of the flu virus or coronavirus if the conditions become more severe. These additional steps include:

• Active screening of employees. Conduct active screening of employees when they arrive at work. Ask about any symptoms during previous 24 hours. If the employee has experienced flu-like symptoms, direct the employee to go home.

• Extend employee sick leave. Extend the time sick employees stay home to at least seven days for the flu, and 14 days for coronavirus. Again, however, employers should check with the CDC for the most updated guidance.

• Changing work duties and workspaces. Try to change work duties, workspace or work schedules for employees who are at higher risk for serious complications due to the pandemic illness. Also consider providing additional personal protective equipment or implementing workplace barriers to block the spread of the virus. The goal is to minimize unnecessary contact/exposure.

• Detailed planning about essential business functions. Prepare for employees to stay home from work and plan ways for essential business functions to continue.

• Increase social distance. Find ways to increase the space between people. This may be accomplished by canceling nonessential face to face meetings, by moving meetings to conference calls or Internet-based meetings or by canceling nonessential business travel. A more immediate solution may be moving workspaces further apart or creating flexible work hours, so there are fewer workers in the workplace at the same time. Also, telecommuting options may be necessary for some employees.

• Contingency planning for absenteeism. Make a contingency plan for increased absenteeism cause by illness. This may include cross training employees or hiring temporary workers.

• Guidance for traveling employees. Provide guidance to employees who are traveling, including overseas, on what to do if they become sick.

Other laws cover pandemics

The creation and implementation of a Pandemic Preparedness Plan should consider the overlap of several employment related statutes.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during a “12-month period,” for various qualifying reasons. Qualifying reasons include:

• the care of an employee’s spouse, son or daughter or parent with a serious health condition

• a serious health condition that renders the employee unable to perform essential functions of his or her position.

In certain circumstances, workers or their family members who contract an illness similar to the flu or coronavirus may be eligible for FMLA leave. To make this determination, the degree of illness needs to constitute a serious health condition. Employers who become aware of an employee's need for FMLA leave must notify the employee of his or her eligibility, either orally or in writing. See Chapter 17: Family and medical leave.

In the context of the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act, which temporarily expanded the reasons for which employees could take FMLA leave to include the care of a child due to the COVID-19-related closures of a school or child care provider. This expanded FMLA right, which applies to employers with fewer than 500 employees, including smaller employers not usually covered by FMLA, is scheduled to end on December 31, 2020. See Other types of leave.

Occupational Safety and Health Act

Under Occupational Safety and Health Act (OSH Act) employers have a general duty to provide their workers with a safe workplace. This duty implies potential liability if an employer flagrantly allows a serious ill employee to remain at work. As such, employers should identify possible work-related exposure and health risks to your employees and in the event of pandemic, employers should send employees home if they display influenza like symptoms. See Chapter 33: Safety and health.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against “qualified individuals” with a disability. Generally, an employee who suffers from a one- or two-week bout with the flu or coronavirus would not be considered disabled, however, employers should take care not to make inquiries about work availability that are disability related. For those employees who have a disability, an employer is required to provide reasonable accommodations, absent an undue hardship, however, regardless of disability status, employers must be prepared to accommodate sick employees and should be cautious of caregiver discrimination. In addition, those with underlying health conditions that place them at a greater risk of severe illness because of the pandemic virus may be entitled to reasonable accommodations to reduce their possible exposure to the virus.

The ADA also regulates an employers’ disability related inquiries and medical examinations for all applicants and employees, including those who do not have an ADA disability. The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.” Factors used to consider whether an employee poses a “direct threat” include:

• duration of the risk

• the nature and severity of the potential harm

• the likelihood that potential harm will occur

• the imminence of the potential harm.

See Disabilities and reasonable accommodations.

Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in employment decisions and requires that genetic information be maintained as a confidential medical record, with strict limits on its disclosure. Employers need to take care about how they treat medical information voluntarily disclosed during an employee’s illness. See Chapter 12: Discrimination.

Workers’ compensation

If the employees’ work environment and specific responsibilities may increase those workers’ exposure to a virus or bacteria, a worker could potentially argue that the disease is compensable under Tenesee’s workers’ compensation program. This creates a further incentive for the employer to create or update a PPP and keep employees well informed of its policies and procedures. See Chapter 35: Workers’ compensation.

Families First Coronavirus Response Act

In addition to the expanded FMLA leave right discussed above, the Families First Coronavirus Response Act also created a new paid sick leave mandate. Employers with fewer than 500 employees must provide two weeks of paid leave for certain specific reasons associated with the COVID-19 pandemic. This leave right expires on December 31, 2020. See Chapter 17: Other types of leave.