Swine flu and employer’s duties; minimise headaches for
your business.

Eamon Harrington advises...

With swine flu a potential problem in Irish workplaces, employers must be aware of their duties to employees where matters of health and safety, staff absences, sick pay, and confidentiality are concerned. Matters that need to be considered by employers include the following:

Health and Safety

What duty do I owe my employees concerning swine flu?

Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk for various reasons. In addition, there is enormous commercial benefit to an employer in reducing the risk of spread of the virus.

Accordingly, employers should consider taking simple precautions to prevent the spread of the virus. For instance;

• Provide hand-wash and paper tissues in all communal areas and encourage their regular use.

• Inform staff of key HSE advice on precautionary steps.

• Educate your staff on the most common symptoms of swine flu

• Review cleaning regime to ensure surfaces are cleaned frequently, including those touched by several people such as a “hot desk”, kitchens and toilets.

• Consider whether any reduction to work-related travel is possible. For instance, consider using telephone or video-conferencing where possible, instead of face-to-face meetings.

Have regard to high risk employees. For instance, is it feasible for them to work from home?

Sick Employees

How do I know if an employee should be at work or not?

Send home anyone with flu-like symptoms until they have been diagnosed. If confirmed as having swine flu, ensure they do not return to work until their symptoms have completely gone.

Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must co-operate with their employer to enable it to comply with its duties under health and safety legislation. Accordingly, employees who refuse to co-operate or who recklessly risk their own health or that of colleagues or customers can be disciplined.

Sick Pay

Must an employer pay an employee when absent through illness?

There is no statutory entitlement to paid sick leave. Any entitlement may depend on the employment contract to include any terms and conditions of employment in a staff handbook. However, if an employee does not have a contractual right to sick pay, then the employer may insist on staff staying away from the workplace on the basis of the employer’s obligations under the Safety Health and Welfare at Work Act, 2005 to provide a safe place of work for co-workers

Businesses usually want their staff to come back to work as soon as possible, but those with swine flu should be encouraged to stay at home until they are better so as to reduce the risk of the infection spreading and thus causing further absences. Since employees who are not paid in full may be tempted to return to work prematurely, it may be prudent to review sick pay provision and consider temporarily extending the right to ensure that everyone, regardless of length of service or grade, is entitled to at least one week’s sick pay if absent with swine flu.

Employers exercising discretion as to how long sick pay should be paid should beware of creating inequalities that may lead to discrimination or constructive dismissal claims.

Employees who Don’t Want to Attend Work

What about employees who are anxious to avoid the risk of contact with others and request to work from home?

This may be impractical for many employers, who may well not be able to carry on business. Accordingly; a) assess the risk regularly, consulting the HSE website for updates and, if necessary, obtaining expert opinion, b) consider the employee’s particular reasons for not wanting to come into work. For example, if the employee is pregnant or in another high-risk category, the employer may have to allow greater flexibility. However, where an employer allows remote working, the employer should reserve the right to require workplace attendance.

While an employer can discipline an employee for refusing to come to work where such refusal is unreasonable, the employer should exercise caution, as the employee may assert that he/ she reasonably believed in good faith there to be serious and imminent danger from swine flu.

Staff with sick dependants

What about staff with young children or who are carers for elderly relatives?

Young children and people aged 65 and older are both considered to be high risk under the HSE guidelines. Staff that care for such individuals are a further category in respect of which greater flexibility in working arrangements may be appropriate. In this context, note that employees with children have a specific right to take a “force majeure” leave. For instance, in emergency cases, staff may be entitled to paid Force Majeure Leave under the Parental Leave Act 1998. Such leave is only available in restricted emergency circumstances and for a maximum of 3 days in 12 months or 5 days in 36 months.

Confidentiality and data protection

Do I tell other staff members that their colleague has swine flu?

Employers owe a duty of confidentiality to their employees. Care should be taken before telling staff about a colleague having contracted swine flu.

Information about an employee’s physical or mental health or condition is also ‘sensitive personal data’ under the Data Protection Act (DPA) and must not be disclosed or processed without the employee’s express informed consent. Emailing staff to tell them that an employee has swine flu, or giving information which enables them to work out who the sufferer is, may be in breach of the DPA unless permission has been granted. When obtaining written consent to disclose the information, make sure the employee understands the purpose and exactly what will be revealed and to whom.

Where consent is refused, it may still be necessary to inform certain staff, such as those who worked closely with the individual in question – in order to warn and protect them. In such circumstances, disclosure is probably allowed under the DPA as it is necessary to prevent injury or other damage to the health of a person.

Further Information

This note is for general guidance only and is not to be relied upon as legal advice which may need to be tailored for any given situation.

For further information on this subject please contact a member of our Employment Law Department on employment@ckt.ie or 021 4626900

Back to News