Ever­sheds have pub­lished a guid­ance doc­u­ment on the Human Resources implic­a­tions for pan­demic planning.

While the recent media report­ing of swine flu has dwelt on the obvious health and safety issues, the threat of a pan­demic, whether now or in the next few months, also raises some prac­tical chal­lenges for HR depart­ments across the country.

Neces­sary action steps?

From a health and safety per­spect­ive, employ­ers are legally required to provide a safe working envir­on­ment, and this includes pro­tect­ing employ­ees from out­breaks of con­ta­gious dis­eases in the work­place. However, how that pro­tec­tion might be afforded is likely to give rise to many and diverse issues for employ­ers and that is assum­ing employ­ees can make it in to work. What if public trans­port is affected and schools closed, pre­vent­ing attend­ance at work?

The key message is to be pre­pared, to take sens­ible pre­cau­tions now and to have a con­tin­gency plan in place in case the situ­ation deteri­or­ates. Such a plan should reflect a bal­anced and informed risk assessment.

Some initial sens­ible pre­cau­tions include:

Provid­ing employ­ees with access to the latest gov­ern­ment inform­a­tion and advice via emails, posters and the like

Advising unwell employ­ees to seek medical advice and to stay away from work

Restat­ing absence report­ing pro­ced­ures to ensure that employ­ees report their illness at the earli­est opportunity

Post­pon­ing face to face meet­ings and train­ing courses or repla­cing them with tele­con­fer­en­cing; can­cel­ling unne­ces­sary travel and social events.

Con­tin­gency Planning

A con­tin­gency plan will address the more dif­fi­cult HR and legal issues. For example, it should anti­cip­ate the following:

How the organ­isa­tion could con­tinue to func­tion with a skel­eton staff, for example, divid­ing work between mul­tiple sites in case one loc­a­tion is affected

Whether and how to train more employ­ees in essen­tial business-critical know­ledge and skills, to ensure the organ­isa­tion can con­tinue to operate

How to manage working hours and over­time where employ­ees agree to cover absent employees

How to deal with employ­ees who are required to go on business-critical foreign travel, but who refuse to go for fear of getting infected

Whether essen­tial foreign busi­ness travel can be tracked to allow employ­ees to be located and repat­ri­ated if necessary

How to deal with foreign-posted employ­ees who want to come home

How and when employ­ees will be per­mit­ted to work from home to avoid work­place infection

Where home-working is not an option, how the organ­isa­tion will deal with employ­ees being excluded from an infec­ted work­place. Is there a con­trac­tual right to lay-off employ­ees, or to require them to attend a dif­fer­ent work­place or take holiday in such circumstances?

Whether the employer has the right to require employ­ees to submit to a medical examination

How to deal with employ­ees who are well but who are refus­ing to attend work to avoid the risk of general infection

Whether the employer has the right to require an employee to submit to a vac­cin­a­tion against swine flu (if one is developed)

Whether and how normal absence record­ing will include quar­ant­ine time, working from home to avoid infec­tion and falling ill with swine flu (one risk being that employ­ees are ‘pen­al­ised’ for report­ing symptoms)

How to deal with employ­ees whose depend­ants fall ill with swine flu or where their children’s school is closed to contain an infection.

Many of these issues rep­res­ent organ­isa­tional and staff­ing issues for the employer. Others, such as how to address lack of attend­ance, work­place clos­ures and what, if any, pay­ments absent employ­ees should receive can be legally complex.

How an employer should respond will vary accord­ing to the par­tic­u­lar issue and, unfor­tu­nately, there is no one-size-fits-all answer. A start­ing point will be the con­tract of employment.

For example, if a work­place is required to close tem­por­ar­ily, the con­tract may provide for enforced holiday or lay-offs. If employ­ees cannot attend work because of their per­sonal cir­cum­stances or travel facil­it­ies, there is unlikely to be a spe­cific con­trac­tual term address­ing this.

Con­sid­er­a­tion will then need to be given to issues such as the employee’s right to stay at home to under­take emer­gency child­care, flex­ible working and home-working policies and any custom and prac­tice within the organisation.

Like­wise, con­sider custom and prac­tice in the context of occu­pa­tional sick pay; the risk being that this has become a con­trac­tual right for employees.

Where employ­ers have no con­trac­tual terms address­ing poten­tial pan­demic issues, the employee may agree to unpaid leave and other changes to their con­tract. Seeking employee consent to short-term changes in terms and con­di­tions to deal with an emer­gency is a poten­tial option worth exploring.

Con­tin­gency plan­ning requires the employer to act reas­on­ably, weigh­ing up the needs of both the employer and employee and con­sult­ing with trade unions or employ­ees rep­res­ent­at­ives, if appro­pri­ate, before decid­ing on policy.

In so doing, employ­ers must treat employ­ees even-handedly, for example, not making unfun­ded assump­tions around preg­nant, older or dis­abled employ­ees. Employ­ers should also be aware of privacy and data pro­tec­tion issues when dealing with the details of employ­ees’ ill­nesses or other sens­it­ive per­sonal information.

Contact us

To find out more about the Ever­sheds train­ing courses and other human resources issues, please e-mail hrgroup@eversheds.com. You can also visit our train­ing pages for details of in-house and public courses.