Law Practice Today

Despite predictions of a swine flu pandemic, few employers are prepared for an outbreak and many have not considered its employment implications.  But in surveying all of the issues connected to an outbreak of swine flu, the Congressional Research Service concluded, “questions relating to employment are among the most significant issues.”

Swine flu has already been identified in more than twenty states in the United States and in countries in Europe and Asia. The emerging virus will be one to which humans have little or no immunity.  Coupled with the anticipated time of exposure, it is estimated that the swine flu could infect large numbers of the American population.

As the disease progresses, not only could a significant number of employees be afflicted with the disease, but family members for whom the employees have special responsibilities will also be affected. Though the progress of the disease has slowed, projections from the Centers for Disease Control and Prevention suggest that the flu may reappear in a more virulent form in a few months or even weeks. Previous estimates for such a case indicate that absentee rates could rise to 30-40% of a workforce lasting 6-8 weeks in waves of eighteen months as the infection circulates and re-circulates through the population.

Attendance Issues and Swine Flu

How do employers treat those employees who are out of work for extended periods of time because they or one of their relatives has the swine flu?  Very carefully because they are protected by both statutory and common law for employees.  The Family and Medical Leave Acts (FMLA) come readily to mind.  Both the federal and state statutes provide that an employee is protected if he or she is unable to come to work because of either the employee’s own serious medical condition or that of the employee’s spouse, parent or child.  The federal FMLA defines “parent” broadly to include person who stood in loco parentis to the employee and the Connecticut FMLA includes parents-in-law.

Both the federal and Connecticut FMLA define a serious health condition as “an illness, impairment or physical or mental condition that involves (A) inpatient care in a hospital, hospice, nursing home or residential medical care facility; or (B) continuing treatment, including outpatient treatment by a health care provider.”  Conn. Gen. Stat. § 31-51kk (10); 29 U.S.C. § 2611 (11).  Given this broad definition of “serious medical condition,” in the event of an outbreak of swine flu, it is likely that large numbers of employees and/or their family members will have a “serious health condition.”

The federal FMLA provides for twelve weeks of leave in a twelve month period and the Connecticut FMLA provides for sixteen weeks of leave in a twenty four month period.  However, the federal FMLA is only applicable to employers with 50 or more employees and the Connecticut FMLA is only applicable to employers with 75 or more employees.  Employers with less than 50 employees are not bound by the federal FMLA and employers with less than 75 employees are not bound by the Connecticut FMLA.

Also, neither the federal nor the Connecticut FMLA requires an employer to pay an employee during his or her absence.  They merely require that an employee be given a leave of absence.  However, if an employer has a policy of providing paid leave, the employer may not refuse to pay for FMLA leave, provided the employee meets the terms and conditions of the employer’s paid leave policy.

PUBLIC POLICY EXCEPTION

Although the protections of the FMLA are limited, the public policy exception to the employment at-will doctrine may protect large numbers of employees in the event of an outbreak of swine flu.  Most employees are employees at-will, which means that they can be terminated for any reason at any time.  However, an employee may not be terminated for “a demonstrably improper reason.” [i]

In Parsons v. United Technologies Corporation, [ii] plaintiff, an at-will employee, was terminated when he refused a directive to go to Bahrain to service a helicopter.  Plaintiff was an instructor of aircraft maintenance and had been a member of a team that built a nonmilitary helicopter for the Crown Prince of Bahrain.  He provided instruction to Bahrain nationals in the United States and when his employer and the Bahrain officials decided that additional training was necessary, a decision was made to provide the training in Bahrain.  Plaintiff was directed to go to Bahrain.  He refused because he said he feared for his safety.  The United States State Department had advised American citizens to avoid travel to Bahrain because of the uncertainty in the region and the threat of military attack.  Yet, he was still fired.

He claimed that his termination was in violation of public policy.  According to plaintiff’s theory, the employer is responsible for providing a safe workplace and since the employer was sending him to a place that the State Department declared unsafe, he had a right to refuse to go.

The court sided with the plaintiff’s argument.  After taking what it called  ‘judicial notice’ of the events in the region, the court concluded that  “[u]nder these circumstances, common sense and human experience dictate that plaintiff’s assignment to [Bahrain] to teach repair and maintenance of nonmilitary helicopter for [the Bahrain government] could pose a significant threat to the plaintiff’s safety and welfare.” [iii]

The court did limit its holding.  It stated that although it was recognizing a cause of action for wrongful termination in violation of a safe work place, it was “ not holding that an at-will employee can contest his or her discharge based on a subjective belief that an employer’s directive would pose a threat to the employee’s health and safety.” [iv]

Employees facing an swine flu outbreak may be able to successfully argue that coming to work and exposing themselves to the potentially lethal virus.  Just as the court took judicial notice of the impending conflict in Bahrain, a court could be persuaded to take judicial notice of extent and seriousness of swine flu. 

If and when there is a large scale outbreak of swine flu, will most likely be recognized by federal and state health agencies.  Also, while the swine flu moves through the population, it is likely that both federal and state health agencies will advise that congregating in public is unsafe.  Under these circumstances, employees terminated for refusing to come to work and exposing themselves and their families to contagion or employees who refuse to come to work for fear of spreading the swine flu to others, including co-workers are likely to have a claim for wrongful termination.