The threatened flu pandemic - issues for institutions and staff

Our regular weekly legal column this week tackles the issue of swine flu and how universities should prepare, should they be affected

May 18, 2009

It is difficult to avoid coverage of the threatened swine flu pandemic. At the time of writing, the World Health Organisation has raised its Pandemic Threat Alert Phase to Level 5, and the Department of Health reports 78 known cases of the infection in the UK. What does this mean for students, employers and others working in the sector?

Students

The Department for Innovation, Universities and Skills has issued specific guidance on swine flu for higher and further education institutions. The guidance notes that institutions should ensure that their plans take account of international students. Further, it recommends that any students with learning difficulties should be made aware of how to identify symptoms and take precautions. The guidance also suggests that setting up a student “flu buddy” scheme should be encouraged, to enable those who are not affected by the virus to give support to those students who are (although the guidance recommends that physical contact be kept to a minimum). Presumably this could involve the electronic sharing of lecture notes and suchlike. Institutions are advised to update contact lists of staff and students, and also to agree a communication plan in respect of all stakeholders if a pandemic is confirmed. Institutions will also be mindful of their general duty of care to students and obligations arising under the student contract and health and safety legislation.

Staff

The DIUS guidance lists potential trigger points for institutions to consider in relation to staff: severe shortage of lecturing staff; severe shortage of cleaning staff; severe shortage of maintenance staff; inadequate numbers of security staff; severe disruption to public transport network; and power cuts or other utility failure. It predicts that staff absence in a pandemic would be likely to decline only after a peak lasting two to three weeks, when between 15 and 20 per cent of staff are likely to be absent.

Further, it is suggested that staff absence policies are considered by institutions in advance. No further guidance is given, but it is clear that institutions will be expected to manage sickness absence in accordance with usual principles.

The National Health Service has also issued guidance for individuals who believe they may be suffering from swine flu. They advise that individuals should not visit their GP surgery or hospital, but should remain at home.

Other considerations - time off for dependants?

Another potentially relevant legal provision in this context is the limited statutory right for employees to take a reasonable amount of unpaid time off work in order to deal with family emergencies involving dependants, which may include the illness of a dependant. It is important to emphasise that this right extends only to situations involving dependants of the employee; it does not provide a right to take time off for other emergencies that may arise at home, however serious they may appear to be at the time. A “dependant” is defined as a spouse, civil partner, a child or parent of the employee (but not a grandparent) or a person who lives in the same household (except tenants, lodgers, boarders and other employees) and, in certain cases, includes those who reasonably rely on the employee.

Importantly, the law imposes a corresponding responsibility on employees in such circumstances to tell the employer the reason for absence as soon as reasonably practicable, and to say how long they expect to be absent (unless it is not possible to communicate the reason for absence until after the return to work has occurred).

It is clear that any flu pandemic will bring challenges for institutions, in addition to all other organisations, and both employers and employees will need to be aware of their responsibilities in relation to this potentially challenging issue.

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