Sometimes it’s not a good thing to be first, as in Wisconsin’s dubious honor as the leader of confirmed H1N1 flu cases in the United States. And based on predictions for this fall, we haven’t seen the likely end of the H1N1 flu situation. On June 11, 2009, the World Health Organization signaled that a pandemic of novel H1N1 flu was underway.

Though most of us associate the spread of the H1N1 flu – or swine flu, as it is informally known – with schoolchildren, it’s also an issue that businesses should be proactively thinking about as well.

“Businesses have a tendency to be reactive rather than proactive about these situations,” says Attorney Eric Hobbs, a partner in the Labor and Employee Relations Practice at Michael Best and Friedrich in Milwaukee.

In terms of policies, businesses should be thinking about H1N1 on a number of fronts.

According to the Centers for Disease Control, the symptoms of H1N1 include: Fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills and fatigue. A significant number of people infected with this virus also have reported diarrhea and vomiting. What makes H1N1 so problematic, however, is that many of these symptoms can indicate a variety of health issues.

“An employer does have the right to send an employee home for any lawful reason,” notes Hobbs. “Sending an employee home because you suspect he or she has H1N1 flu is an acceptable reason … and by the way, it also means that you, as an employer, are concerned about the employee’s health as well as the other employees in your workplace.”

Hobbs does recommend that employers document the reason why the employee was sent home and what was said.

“It is within the employer’s discretion as to whether the employee needs to use sick time or if it should be on the employer’s dime,” says Hobbs. “Employers will come to different conclusions; it really has more to do with your corporate culture.”

Employers can also establish a policy that will only allow employees to return with a physician’s clearance.

Should the H1N1 flu return to the levels earlier this year, it’s likely that school districts will once again consider closing select schools.

“Kids are petri dishes,” agrees Hobbs. “I have been told that the incubation period for children is 10 days; it’s about seven to eight in adults. On top of that, during the pre-symptom stage, the H1N1 virus is more communicable, so an employee who goes home to children who are infected can pick up the flu before anyone in the family is showing symptoms of it.”

School closings are beyond the control of employers and employees, and Hobbs suggests that businesses do what they can to reasonably accommodate parents who find children home due to a closing.

“This is an issue that we encourage businesses to plan for now rather than later,” he says of the potential for work-at-home scenarios and temporary telecommuting for families affected by school closings. “If you haven’t allowed for it in the past, you should at least investigate whether or not it can be done; the conclusion may very well be that it’s not possible.”

As for employees who find that a family member is indeed ill with the H1N1 flu, Hobbs notes that the Department of Labor has clarified that the genuine flu can qualify as a covered health condition under the Family and Medical Leave Act.

“This was recently made clear for the first time,” he notes.

Should you have an employee who qualifies for FMLA leave due to a familiar case of H1N1 flu, he or she would simply follow the existing rules and requirements.

One thing that employers shouldn’t do is ignore this issue, whether it does turn out to be a pandemic or not.

“The Occupational Safety and Health Administration does say that employers have a general obligation to all employees in providing a safe and healthful workplace environment,” says Hobbs. “It could be argued — though I don’t believe that OSHA would pursue it — that not taking the proper procedures in regards to H1N1 flu would be a failure of this responsibility.”

By Laurie Arendt

Laurie Arendt is editor of CRW. She can be reached at crweditor@crwmag.com