How Should the Ohio BWC and Industrial Commission Treat Claims for H1N1?

Posted on October 22, 2009 by Brian Hall

As concerns about the potential scope of the H1N1 flu continue to grow, one question we keep hearing from clients is whether employees who believe they have contracted H1N1 in the workplace may have compensable workers' compensation claims. In the vast majority of cases, we believe the answer will be a resounding "No."

Ohio defines an occupational disease as:

"a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general."

Therefore, for instance, the office worker who contracts H1N1 because somebody in the next cubicle had it does not have a compensable claim. The situation is no different than the seasonal flu from year to year.

One likely exception to my general proposition come to mind:  healthcare workers, who by the nature of their work may be exposed to H1N1 in a greater and different manner than members of the general public. Childcare workers also may have an outside chance at establishing a viable claim. Even then, however, most healthcare and childcare workers will still have a difficult time proving actual causation; that is, that they actually contracted H1N1 as a result of their work rather than from a sick family member, at a restaurant or some other public place.

The H1N1 vaccine may also pose a potential risk if it ever becomes widely available. Workers who experience side effects from getting an H1N1 vaccine may claim they are entitled to workers' compensation benefits. In the absence of evidence that the employer actually required its employees to get vaccinated and demonstrated illness based on any known side effects, these claims should be rejected.

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Homeland Security Says Small Business Should Develop Written Plan to Prepare for H1N1

Posted on September 22, 2009 by Brian Hall

"The most important thing you can do to prepare your business is to have a written plan."

The federal Department of Homeland Security, in conjunction with the Center for Disease Control (CDC) and the Small Business Administration (SBA), provides this advice to small businesses in its recently released, Planning for H1N1 Influenza: A Preparedness Guide for Small Business. The Guide suggests a seven step process for developing your written plan:

  1. Identify a workplace coordinator
  2. Examine policies for leave, telework, and employee compensation
  3. Determine who will be responsible for assisting workers who become sick at the workplace
  4. Identify essential employees, essential business functions, and other critical inputs required to maintain business operations should there be disruptions during the 2009 H1N1 flu outbreak
  5. Share your pandemic plans with employees and clearly communicate expectations.
  6. Prepare business continuity plans in case the H1N1 flu outbreak causes widespread absenteeism or other operations changes
  7. Establish an emergency communications plan.

The Guide also provides tips for maintaining a healthy workplace now and during flu season. These common sense recommendations include:

  1. Developing policies that encourage workers to stay home if they are sick or are needed to care for sick family members
  2. Providing resources and a work environment to promote personal hygiene
  3. Encouraging workers to obtain seasonal and H1N1 influenza vaccines, if they are among the groups for which the vaccines are recommended by CDC
  4. Educating, training and updating workers on H1N1, its risk factors and its symptoms
  5. Planning practices to minimize face-to-face contact between workers if advised by local health departments
  6. Segregating and sending home workers who become sick while at work.

Interestingly, the Guide suggests that employers should encourage workers who are well but who have ill family member to continue to work while monitoring their own health. In addition, the Guide does not contain any suggestion to make H1N1 vaccines mandatory. At this point, some local health departments, such as the New York Department of Health, have recommended mandatory vaccines for healthcare workers with direct patient contact unless the vaccine is medically contraindicated for an individual. As of now, the Ohio Department of Health has not issued any specific guidance on the vaccination of healthcare workers. Its website, however, does link to the CDC website, which generally recommends the H1N1 vaccination for healthcare and emergency medical services personnel because infections among healthcare workers can be a potential source of infection for vulnerable patients. Also, increased absenteeism in this population could reduce healthcare system capacity.
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Updated Guidance for Businesses and Employers for the Fall Flu Season

Posted on August 26, 2009 by Brian Hall

Concerns about H1N1 Influenza are beginning to creep back into everyone's consciousness as summer is drawing to a close. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at:

CDC Guidance for Businesses, Employers, and Workplaces to Plan and Respond to 2009 H1N1 Influenza

Preparing for the Flu: A Communication Toolkit for Businesses and Employers

Employers should be ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

 

  1. Encourage workers who are sick to stay home (or go home if they've reported to work);
     
  2. Encourage good hygiene in the workplace;
     
  3. Prepare for increased numbers of employee absences due to illness in employees and their family members, and plan ways for essential business functions to continue;
     
  4. Prepare for the possibility of school and daycare dismissal and closure; and
     
  5. Encourage workers to get vaccinated.

 

 

 

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