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:
As many employers are now experiencing first-hand, a pandemic can have a major impact on business operations. For example:
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:
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:
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:
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:
The creation and implementation of a Pandemic Preparedness Plan (PPP) should consider the overlap of several employment related statutes.
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:
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.
During 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 Chapter 19: Other types of leave, Families First Coronavirus Response 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 Chapter 33: Safety and Health.
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:
See Chapter 13: Disabilities and reasonable accommodations.
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.
Policies and Forms
Pandemic outbreaks — Massachusetts
About the Firm
About the Editor
Features of the HR Library
Snapshot – An HR audit
Compliance thresholds — Massachusetts
Recruiting and hiring — Massachusetts
Background checks — Massachusetts
Immigration — Massachusetts
Temporary and leased employees, interns and volunteers — Massachusetts
Independent contractors — Massachusetts
Restrictive covenants and trade secrets — Massachusetts
Policies and procedures manuals — Massachusetts
Wages and hours — Massachusetts
Child labor — Massachusetts
Discrimination — Massachusetts
Disabilities and reasonable accommodation — Massachusetts
Workplace harassment — Massachusetts
Benefits — Massachusetts
Health insurance reform — Massachusetts
Family and medical leave — Massachusetts
Military leave — Massachusetts
Other types of leave — Massachusetts
Performance evaluations — Massachusetts
Personnel Files — Massachusetts
Workplace investigations — Massachusetts
Discipline — Massachusetts
Termination — Massachusetts
Plant closings and mass layoffs — Massachusetts
Health insurance continuation coverage — Massachusetts
Unemployment insurance — Massachusetts
Whistleblower protections — Massachusetts
Privacy rights — Massachusetts
Health insurance portability and privacy — Massachusetts
Protecting electronic information — Massachusetts
The Internet and social media — Massachusetts
Safety and Health — Massachusetts
Workplace violence — Massachusetts
Workers' compensation — Massachusetts
Politics in the workplace — Massachusetts
Celebrating in the workplace — Massachusetts
Federal contractors and affirmative action — Massachusetts
Public employers — Massachusetts
Unions — Massachusetts
Telecommuting — Massachusetts
Drugs alcohol and tobacco — Massachusetts
Diversity in the workplace — Massachusetts
Disaster planning — Massachusetts
Pandemic outbreaks — Massachusetts
Appendix A: Recordkeeping requirements
Appendix B: Posting requirements