By MATT CHANDLER
Buffalo Law Journal

With the H1N1 virus looming, employers are beginning to look into both their obligations to protect employees and the potential liability they could face should an outbreak occur.

While most legal experts agree that building a case against an employer because you contracted swine flu at work would be unlikely, the potential human-resources missteps in the handling of employee illnesses could open the door for a wide range of liability.

Ginger Schröder, a founding partner of Schröder Joseph & Associates LLP who specializes in labor and employment cases, says her firm hasn't received a lot of inquiries about how to approach the H1N1 issue. But she expects that to change.

"For certain, most employers should develop a policy for how they are going to deal with all aspects of something this calamitous, including how people are going to be able to use their sick time and implementing healthy practices in the workplace," she says.

Not having solid policies in place, says Schröder, can lead to not only confusion, but inconsistent decisions by management and potential discrimination claims.

"Employers also need to be concerned about what kind of communications procedures are they going to have for sharing information about individual employees' illnesses," she said, adding that the point can be covered in a well-crafted policy. "The precautionary measures (can be put) in place without having to disclose confidential information about each employee and their particular situation."

Hodgson Russ LLP has posted a detailed guide on its Web site designed to help employers prepare for H1N1. Lura Hess Bechtel, a senior associate in the Buffalo-based law firm's labor and employment practice group, says H1N1 risks haven't been a front-burner issue with her clients.

"My sense is that a lot of employers are taking something of a wait-and-see approach because the effort it would entail to overhaul, for example, your leave policy would be fairly substantial," she explains. "Then if it turns out to be something like the avian flu that was sort of exaggerated, that would be lost time."

Bechtel says many larger employers have disaster-preparedness and response plans that would be implemented should there be a flu pandemic.

Despite precautionary measures, business owners should be mindful of the possibility, however faint, that they'll face H1N1-related litigation.

"Theoretically, it is possible that there could be liability under OSHA (the Occupational Safety and Health Act), because OSHA requires all employers to provide a safe and healthy work environment that's free from known hazards," Bechtel says.

It is how to interpret the word "known" that could create a gray area and potentially lead to claims of employers not doing enough to stem the spread of the virus in the workplace, she said. Calls to the regional director of the Occupational Safety and Health Administration seeking comment were not returned.

For those who worry that H1N1 is the proverbial sky falling, there are others, like Bob Doren, regional managing partner at Bond Schoeneck & King PLLC, who say the fuss amounts to much ado about nothing.

"I think much of what has been reported (thus far) is from the government to the media to the population, and not from the ground up," Doren said. He also doubts the likelihood of any OSHA-related lawsuits stemming from an outbreak, saying that is "stretching it a bit."

"I don't think there is a general duty (on the part of the employer) to try to prevent a virus," he said.

Buffalo-based Synacor, which employs more than 200 people, is one company that has implemented measures designed to keep employees healthy and productive.

"We don't have a formal contingency plan," says Synacor's vice president of human resources, Julia Culkin, "because everybody in our company has a laptop and a phone, and in our culture, we encourage people to stay home if they are sick and to not take any chances."

Culkin says the company also has experience in how to handle employee privacy issues when it comes to sensitive health issues.

"We had an issue in the past with an employee and a staph infection," she said. "If there is a suspicion that somebody is ill, we encourage our employees to come to us confidentially and make the complaint, and we will then pull that (potentially ill or contagious) employee aside and ask them to go see a doctor and get evaluated. In that case, the employee (with the staph infection) did have to work from home for a week and a half, and he was able to do that just as if he was in the office."

The bottom line: Have a policy in place, make all decisions related to employee sick time and job modifications unilaterally and protect the names of any sick employees, and you should be covered.

"As a practical matter, I don't think this would be much different in terms of the legal issues as it would be with any other flu," Doren says.

What employers can do to stave off problems

Some steps employers can take to avoid potential human-resources and legal issues arising from an H1N1 outbreak:
• Create or update company policies. Employment attorneys say having policies in place regarding sick time, time off and expected conduct in the workplace before something like an H1N1 outbreak occurs is an important safeguard against potential problems.
Claims of discrimination could arise if there is no policy in place and different employees are treated differently, or if a policy isn't enforced universally.
• Ensure OSHA compliance. Suing an employer because you contract H1N1 would be difficult, sources said.
But several agreed that there may be a potential claim under OSHA regulations requiring employers to provide a safe workplace. Ensuring that things like soap, sanitizer, tissues and hand-washing stations are readily available and educating employees on safety steps to avoid infection could protect the employer, should a legal issue arise.
• Protect confidential information. Employers cannot divulge health information about an employee, even if that employee has contracted a virus such as H1N1.
Advice from sources was mixed on this point, with some lawyers suggesting that employers send a mass e-mail informing staff that someone (without identifying who) has contracted the virus so that precautions and testing can be taken. Others suggested simply enforcing good hygiene in the office, discouraging sharing of telephone and keyboards and working with employees who are sick or showing potential symptoms to keep them at home.