Of all the topics human resources professionals have to wrestle with, none is more compelling at the moment than the H1N1 flu pandemic. It presents, at least potentially, a workplace dilemma which few companies have experience in solving.

The challenge faced by employers is in deciding how to address a situation which has the potential to temporarily decimate their work force.

What position should they take on whether people should be coming to work if they are not feeling well? How do they balance the need for a healthy workforce with the risk that some people will exploit the opportunity to take time off? Do they automatically send home anyone diagnosed with the flu?

How do they distinguish between the seasonal flu and the H1N1 virus (and does that distinction matter)? Can they somehow compel employees to accept the vaccination? What steps can they take to try and fill the temporary holes which the flu will create in their workforce?

If you came here looking for answers to all these questions, I regret to inform you that you’re going to leave disappointed. At this point in time, the questions surely outnumber the answers for most employers. Some forward-thinkers have in place an emergency plan to deal with a pandemic situation, but I’d be shocked to hear that more than 1% of employers fall within that category.

Most are likely just hunkering down and hoping they get through the worst of the flu season without too much collateral damage to their business. If there’s security in numbers, they can take some comfort in the fact that almost everyone is facing the same situation.

It is extremely doubtful that employers have the legal authority to compel their employees to receive a vaccination. I can imagine the opposite might be true in some highly health-sensitive settings, such as hospitals, but there certainly is no general management right to compel employees to undergo invasive medical procedures.

There is a certain degree of paranoia surrounding flu shots and I’ll wager that the national H1N1 campaign will have difficulty exceeding a 50% or 60% vaccination rate. It’s fair game, however, for employers to make efforts to try and entice their employees to succumb to the needle.

There are all kinds of ways to do that. Be creative – consider arranging for in-house flu shots to make it easy for them. Invite their immediate family members to come along and get a shot, conditional on mom or dad getting one, too. Go crazy and offer your employees a bonus if they’ll get the shot – maybe a paid day off to be taken later in the year - it might end up saving your business plenty in foregone sick leave.

Employers can dictate that ill employees should stay out of the workplace. It’s a sign that employers aren’t yet taking the H1N1 situation entirely seriously that people who have been diagnosed are still attending at work – I’ve witnessed it myself.

It seems to me to be a basic matter of common sense that, once someone has been diagnosed with H1N1 (or the seasonal flu), he or she should be told to stay home until a physician indicates the risk of infection has passed.

But what about the people who will start calling in sick just because they are feeling a little under the weather or even because they know that this is a perfect opportunity to steal a day off? That’s the point at which the flu has the potential to create pandemonium in the workplace, because a high number of people suddenly calling in sick can severely hinder a business.

Each employer needs to determine its preferred balance somewhere between pressuring employees to come to work and telling them to stay home. It’s no good to create a stampede by telling people to stay home at the slightest sign of a sniffle but, on the other hand, there’s no point having infectious people hanging around the office.

Somewhere in all of this, common sense must prevail. The H1N1 (and seasonal) flu season won’t last forever, so a short-term plan to keep operations running may be all that’s necessary. In assembling that plan, employers will be gaining some valuable experience of how to deal with future pandemic situations.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. Past “Legal Ease” columns, may be viewed at http://www.pushormitchell.com/law-library/publication/legal-ease. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.

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