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This Massachusetts Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Pandemic outbreaks — Massachusetts

Massachusetts 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 now been five such pandemics in the last century:

  1. Spanish Flu (1918)
  2. Asian Flu (1950s)
  3. Hong Kong Flu (1960s)
  4. H1N1 Flu (2009)
  5. COVID-19 (2019-present).

As many employers are now experiencing first-hand, 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 refuse to leave their home due to sheer panic.

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
  • purchase supplies, like tissues, soap and alcohol-based hand cleaners to encourage healthy habits in the workplace.

Pandemic preparedness plans

The Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) have developed guidelines to assist businesses in planning for a global outbreak of influenza and other comparable catastrophes. The mantra for such plans, as noted by the Obama Administration during the 2009 outbreak of H1N1 and currently being exhibited by the Trump Administration through the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES Act), encourage employers to “be flexible and non-punitive” when dealing with pandemic outbreaks.

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.
  • Create policies for flexible work leave (e.g. consider staggered shifts).
  • 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: 

  • Encourage vaccines. Encourage all employees who want protection from the flu or other viruses to get vaccinated if a vaccine is available.
  • 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.
  • Routinely clean surfaces and items. Viruses can live on hard objects for up to eight hours 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, etc.) they can be a source of employee contamination.
  • Encourage contact with healthcare providers. Sick employees at higher risk of complications from the flu or any coronavirus strain 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.
  • 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 to seven days. Extend the time sick employees stay home to at least seven days.
  • Changing work duties and workspaces. Try to change work duties, workspace or work schedules for employees who are at higher risk for complications from contracting a 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 overseas employees. Provide guidance to employees who are traveling overseas on what to do if they become ill.

Other laws covering pandemics

The creation and implementation of a Pandemic Preparedness Plan (PPP) 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 H1N1 virus 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.

Occupational Safety and Health Act

Under the 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 virus symptoms. See the Safety and Health.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) and Massachusett's Fair Employment Practices Act prohibit 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 but 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. 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 Discrimination.