In a climate where the phrase ‘health and safety’ is far too often misused or ridiculed, there is a risk that the very real duties that employers owe to their staff and others will be forgotten in the maelstrom of hype and hysteria that is currently surrounding the subject of swine flu. Tim Hill keeps things in perspective and outlines the practical steps employers can take to cope with ‘the second wave’.
Although at the time of going to press the number of new cases of H1N1 swine flu was falling steeply,1 and businesses were reporting that they had thus far not experienced significant disruption as a result of existing cases,2 the expert view is that the worst may yet be to come, in the form of a ‘second wave’ of cases.
The Business Advisory Network for Flu said in July that a decline in weekly cases during the quiet summer period was to be expected, before a resurgence in the autumn — for example, when schools reopen. If this is the case, it added, “the overall peak of the pandemic might be delayed to October, or even later”.3
While this is worrying for employers in general, it’s not all bad news — for the economy, at least. Industry analysts estimate that GlaxoSmithKline, which (among others) is working on a vaccine to combat swine flu, could make up to £1 billion from sales. The drugs giant has pre-orders for 195 million doses — each retailing at around £6 a dose in the UK — from 16 governments around the world.
Pharmacies around the UK are also finding certain products are flying off the shelves. A colleague of mine tried to purchase a thermometer recently in a Boots chemist in Leeds and was pointed towards the last devices in stock. Retailing at £34.95, my colleague was told these expensive digital devices were the only ones the store was likely to have in stock any time soon.
Backing this up, a Sunday newspaper4 revealed in July that: “Superdrug has seen sales of its digital thermometers, at £7.82 each, increase tenfold, while Lloyds Chemist said it is seeing a 700-per-cent increase in demand for its thermometers, and a 70-per-cent jump in sales of its £2 antibacterial hand gel. Manufacturers such as Brannan Thermometers have warned they may run short.”
So, with simple supply-and-demand economics restricting the sale of certain products as stocks run dry, what should good employers be doing?
Practical steps
Earlier this year, the CBI said in relation to the swine-flu outbreak that, as with planning for any potential crisis, companies need to consider how they will cover sick leave, ensure staff are kept informed of the latest advice, and how best to minimise possible disruption to business. Beneath the sensationalist media headlines, the key message is that while swine flu is clearly very contagious, in reality it is little different from the usual outbreaks of flu that occur every winter. Indeed, the Department of Health’s ‘Catch It, Bin it, Kill It’ campaign, which has penetrated national consciousness, was actually prepared for last year’s flu season! With the swine flu outbreak, the Government has merely increased its spend on marketing existing messages.
The HSE’s view on the subject is contained in a page on its website (see Links at the end of this article). It is not the regulator’s own definitive guidance — instead, it refers employers to the Department of Health’s advice — and there is no threat of enforcement action should employers not follow these guidelines.
Against this background, what is ‘reasonably practicable’ for an employer to do? Often overlooked in section 2 of the Health and Safety at Work, etc. Act 1974 is the duty to ensure the health, safety and welfare of employees. This clearly encompasses a duty to take steps both to warn about and, where necessary, protect employees from outbreaks of contagious diseases such as swine flu. At the same time, however, it is not about ill-considered, knee-jerk reactions, such as advising staff to wear masks (see panel overleaf), or stay away from work en masse.
Because the methods of transmission have been clearly identified and are generally well known, the next step is to consider the appropriate response. Below are the main practical steps that employers could and should be taking now:
These are some of the basic steps that most employers can easily take but, depending on the various coinciding circumstances, such as the nature and location of the business, and the number of employees affected by illness, more drastic measures may be required — for example, temporary suspension of certain operations, or parts of the business, may be necessary to reduce the spread of illness.
Absence management
Managing absence will pose both organisational and staffing issues for the employer. It also presents some tricky legal issues, such as what, if any, payments absent employees should receive. A starting point will be the contract of employment. For example, if a workplace does have to close temporarily, the contract may provide for enforced holiday, or lay-offs. However, if employees cannot attend work because of their personal circumstances, or disrupted travel facilities, for example, there is unlikely to be a specific contractual term addressing this.
Consideration will then need to be given to such issues as the employee’s right to stay at home to undertake emergency childcare, flexible working and home-working policies, and any established 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 there are no contractual terms addressing potential epidemic issues, employees may be prepared to agree short-term changes to their terms and conditions. A period of unpaid leave, or enforced holiday, are options worth exploring.
Vulnerable workers
Certain individuals, such as pregnant women, asthmatics, and those with an impaired immune system, are likely to be more vulnerable to infection, and particular consideration should be given to protecting such workers. With regard to new or expectant mothers, employers must conduct a risk assessment to ensure they are not exposed to significant risks to their health, including risk from infectious diseases.
This may require steps to remove the risk, such as a temporary change in role, if that would have the desired effect, and is practicable. Ultimately, a period of paid suspension from work on health and safety grounds may be necessary until the risk of infection has passed.
Are we going to get sued?
What, then, of the claims by some that employers can expect a raft of civil actions from ill staff? Quite simply, any action for catching an infectious disease is going to be very difficult to prove, compared to, say, catching Legionnaires’ disease at work. In the case of the latter, the unusual nature of the illness, coupled with the specific conditions associated with it, make it far easier to pinpoint a source of infection and therefore establish causation.
With swine flu it will be nearly impossible for a claimant to prove that s/he was infected while at work. The nature of transmission makes it equally as likely to have been caught while using a shopping trolley at the local supermarket, travelling on public transport, or socialising with friends. Without causation, any potential civil claim would fall away. Even for those employees wishing to bring a claim, most ‘no win, no fee’ lawyers would hesitate to entertain such actions.
Summary
In reality, the likelihood of an employer facing any sort of HSE or Local Authority enforcement action is extremely low for failure to provide swine flu advice, but responsible employers already recognise that this is not the driving force behind a positive and proactive health and safety culture. It is well documented that healthy workplaces and healthy employees are better for business so, by taking a few simple steps to keep staff informed, at little or no cost, good employers should reap the benefits of continued good attendance and productivity.
[Panel 1]
The eye of the storm
Consultant physician with Salus Occupational Health and Safety in Glasgow, and regular SHP contributor, Dr Chris Ide, found himself on the front line in the battle against swine flu when he was called in as part of the team dealing with the first two confirmed cases in the UK, at Monklands hospital in Airdrie, back in April. Here, he explains the measures taken to protect the NHS staff involved.
Lunchtime — Sunday, 26 April 2009. The phone rings. It’s the on-call consultant in Public Health. “Chris, we think the first two cases of swine flu in the UK are in isolation at Monklands. There’s a meeting at 3pm. Can you come?”
The next day, I brief senior occupational health and safety staff. A medical, nursing and safety group is set up to oversee the work of the OH service in response to the crisis, since we will be heavily involved in ensuring that the health-care workers, both in the hospital and community, are able to continue working while being effectively protected against the flu virus. Shortly afterwards, membership expands to include our helpline and sickness-absence monitoring services. Plans are reviewed, and representatives appointed to various health-board committees. Official (and unofficial) websites are scrutinised at least daily, so we can grasp how the pandemic unfolds and offer appropriate advice to enquirers.
The front-line nurses maintained daily telephone contact with staff sent home with Tamiflu because of unprotected exposure to confirmed, or suspected cases, arranging review a fortnight later, to detect any evidence of flu infection. Meantime, the safety advisors were organising fit-testing of FFP3 RPE. Eventually, just under 10 per cent of Lanarkshire’s 11,000 NHS staff were successfully fit-tested, only to find that the RPE stockpiled by the Government might not be compatible (in terms of fit, the stockpiled masks had previously been found by our safety advisors to have a failure rate of around 30 per cent), and the whole process may need to be repeated!
Early on, we e-mail external clients with information on pandemic flu, then identify core activities on which we would concentrate in the event of significant absence of OH&S staff. But what about our external customers? Employees subject to Statutory Medical Surveillance need valid certificates in order to work legitimately.
Since early July, there have been 48 flu cases among NHS Lanarkshire staff, with 17 still off work. So far, none seems to have caught the virus as a result of work-related patient contact, thus attesting to the quality of OH&S provision.
In the medium term, plans are being made for the administration of two doses of H1N1 flu vaccine to employees, along with seasonal flu jabs. In the longer term, however, how much rehabilitation will be required for sick workers who don’t fully recover? Only time will tell.
[Panel 2]
Masking the problem?
There has been much debate in the media about whether or not wearing disposable facemasks is an appropriate, or effective measure to contain the spread of the swine flu virus, and, if so, should the Government be stockpiling them?
Masks are really only effective in preventing the spread of the virus from those already infected, not in protecting people from getting it. Mark Johnstone, chief executive of Oxfordshire-based PPE manufacturer JSP, which supplies disposable facemasks to the NHS, agrees. He said: “The point of wearing a mask is to stop the virus speading once it has been breathed out. For ‘the man in the street’ an FFP2 unvalved mask is suitable for those who are infected, but medical staff should be wearing highest-efficiency FFP3 masks.”
This is also what the main official guidance on the subject — from the NHS, the World Health Organisation,5 etc. — suggests. The guidance also emphasises the importance of using the mask correctly, as incorrect use increases the chances of the virus spreading.
Masks must fit securely, avoid touching them when in use, replace them as soon as they become damp, and wash hands thoroughly after touching/removal. As to whether the Government should be stockpiling them — just how many would be needed, if the worst-case scenario of millions of people become infected, with each of them requiring up to three masks a day for the average five days of the infectious period? Serious numbers indeed. . .
References
8188027.stm, dated 6 August 2009
publications/swineflu/masks_community/en/index.html
Links and useful resources
Tim Hill is a partner in the Regulatory Group of Eversheds LLP.
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