Keeping on top of swine flu

With winter approaching the number of swine flu infections seems to be increasing again and the Chief Medical Office has announced that the second wave of the flu has now begun. With the risk of infection mounting hotel operators should give due consideration to the implications relating to dealing with staff and guest infections in their hotels. This article focuses on employment issues arising from such circumstances.

The primary concern for any hotel operator should be what it can do to prevent the spread of the virus through its workforce/guests. The Health and Safety Executive has issued general guidance for employers, setting out the main steps that they should be thinking about in this regard. The key message being that employers should act by adopting basic precautionary measures in the workplace, even if they perceive the risks that swine flu poses to their organisation to be very low. Particular focus is placed on employees always practising good personal hygiene and advising employees to stay at home if they are believed to have been exposed to the swine flu virus and / or are exhibiting flu like symptoms. Similarly, employers are advised to send home any employees in similar circumstances and ensure that such employees do not return to work until assessed as fit to do so by a doctor.

Equally important are communications given to employees about how to deal with an incident or outbreak of swine flu. Such communications could include a specific business continuity plan, as well as amendments to existing employee policies and practices dealing with issues relating to a swine flu infection. These are both important to ensure that a hotel business continues to operate effectively in the event of a reduced work force.

The policy on absences will play a key part in any review of employee policies and practices. Absences during a pandemic will include genuine sickness absences, the taking of time off to look after dependents and absences for other reasons, such as sheer reluctance to attend or travel to work. The behaviour of employees during the first wave of swine flu may have given hotel operators an indication of how their workforce is likely to be affected. Hotel operators should review their sickness absence and sick pay policies to ensure these are appropriate. They should prepare for absences of at least five – seven days per person where employees are affected by swine flu. Priority should be to keep the genuinely ill away from work and changes in policy may have to be made, for example employees may be required not to return until it is safe for them to do so (rather than when they feel better). As stated above, absences may also occur when employees take time off to care for sick dependents.
To ensure that there are not abuses of their leave policy, hotel operators may wish to review policies so that payment related to such leave is limited to a certain number of days and/ or is made on the production of sufficient evidence of genuine reasons for absence. The statutory right to take time off for dependants extends to a ‘reasonable period’, which is likely to be longer than employers are currently used to. In light of this, employers should review their holiday policies to see if these allow them to require employees to take holiday at the employers’ direction.
By contrast, employees may be reluctant to attend work if there has been an outbreak of swine flu at their workplace. Actively insisting that the sick stay at home should encourage the healthy to come to work, but employers will need to be sensitive to genuine concerns and may, if practical, be able to agree different working arrangements, for example working from home. Any unreasonable refusal to attend work may, ultimately, be dealt with by disciplinary action.

Another issue for hotel operators may be that of keeping services operating ‘as usual’ with a reduced workforce. Employers may be more likely to cancel or rearrange planned employee absence, redeploy (and retrain) staff, seek more overtime and allow annual leave to be carried over to the next year. Hotel operators wishing to introduce more flexible working arrangements, for example different working times, should remain conscious of the difficulties of unilaterally imposing contractual changes to the employment relationship. All changes should be undertaken within a framework of effective and, where possible, early consultation. Employers will have to decide whether there is a sufficient flexibility within the existing employment contract to make the required changes or whether express consent or other measures to implement the changes are necessary. The unilateral imposition of contractual changes is risky and can lead to claims for breach of contract and unfair dismissal. If in any doubt hotel operators should seek advice from a specialist.

As well as employee illness, it is important for policies to state how employees should deal with an outbreak of swine flu amongst guests in the hotel. Clearly public relations issues and any media attention will need to be managed carefully and a hotel operator may wish to reinforce or reintroduce confidentiality provisions which limit what employees can (and cannot) say about the hotel operator’s business. This will be essential to try and contain any negative publicity that may arise out of a swine flu outbreak in a hotel.

In addition to the key employment related issues dealt with in this article, hotel operators will need to consider many other issues arising from an outbreak of swine flu. These will include what insurance cover the hotel operator has in place for business interruption, cancellation of conferences and other social / business events and the potential for claims by guests / staff. Hotel operators will need to give consideration to the full spectrum of potential issues in order to be properly prepared to face the challenges of an outbreak in one of their hotels.

This article first appeared in Hotel Report.