Swine flu gives rise to concerns over legal rights and obligations

by 21 May 2009

The increased focus on health risks due to the recent global outbreak of swine flu has heightened the need for employers to better manage their workplace health practices, paying particular attention to their legal rights and obligations to care for their employees, according to Harmers Workplace Lawyers.

The most important concern for employers was to understand their risk profile, according to Joydeep Hor, managing partner of Harmers.

By gaining a better understanding of the threats to their business – whether from chronic contagious viruses such as the H1N1 Virus (commonly referred to as swine flu), traditional influenza or other illnesses, including mental illnesses such as depression – an employer will be in a better position to best implement appropriate health and safety practices with a considered level of diligence.

“Traditionally, employers have been somewhat reticent when it comes to managing the health of their employees because of privacy and discrimination concerns. However, while these issues are there, employers have an absolute duty of care to ensure the health of all staff and visitors to their place of work,” Hor said.

He also noted that employers had an obligation to consciously manage the health and safety practices implemented in their workplace.

“Employers’ general response to workplace hygiene and health issues shouldn’t merely be limited to the perceived threat from potentially deadly viruses such as swine flu. Rather, best practice standards on health and safety should always be in place,” he said.

Hor said that employers needed to understand the specific details of significant health issues they became aware of, so that measures could be implemented to ensure the health of affected employees as well as the rest of the workforce. And they had a right to take certain steps to ensure the wellbeing of their entire workforce.

“Employers need to consider questions such as ‘Could being at work exacerbate an employee’s illness? Is an employee returning to work after an illness or injury really fit to work?’ If an employer fails to understand the dangers presented to their employees, then the employer could, in turn, be liable,” he said.

While there are significant rights and obligations for employers regarding health management, Hor also noted that employees had certain rights and obligations that needed to be addressed.

“An employee has an obligation to their employer that they will not adversely affect the capacity of an employer to do business, so if an employee comes into work when they are sick, and exposes other workers to illness, they are in breach of their own obligations,” he said.

In conclusion, Hor urged employers to take practical steps to deal with any health issues or risks of which they were aware. “If an employer remembers to be sensitive in their dealings with staff, and always take the health, safety and wellbeing of all their staff seriously, then they will go a long way to addressing their legal obligations,” he said. “A big part of this is addressing cultures within workplaces.”

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