Swine Flu

Frequently asked questions

1. What is swine flu?

The A/H1N1 influenza virus (swine flu) is the term being used to describe a respiratory illness which has been reported in parts of Mexico and which is now being reported from other countries in the world, including the UK. The main symptoms of swine flu are sudden onset of fever, shortness of breath or breathing difficulties. Other symptoms can include headache, sore throat, tiredness, aching muscles, chills, sneezing, runny nose or loss of appetite. If during this period the employee develops a feverish illness accompanied by one or more of cough, sore throat, headache and muscle aches, then the employee should contact their GP by phone or seek advice from NHS Direct (0845 4647), and report back to their line manager as appropriate.

2. What is the risk?

Based on current available evidence, close contact with an infected person poses the highest risk of the infective agent spreading from one person to another. To date, the majority of cases have occurred in people returning from Mexico or from those who have come into contact with these people. The World Health Organisation has increased the pandemic level to phase 6, however, that is a result of the geographical spread rather than its severity. The amount of the infective agent needed to cause an infection has not yet been determined and the Department of Health has stated that the combined incubation and infection period is believed to be around 7 to 10 days. The term ‘pandemic’ simply means that the virus is spreading globally through human to human contact but it is not an assessment on the severity of the virus.

3. What if we know that the individual has been in close contact with a known swine flu case?

In the exceptional circumstance where an individual has come into close contact with a known swine flu case, in an affected area, it would be prudent for the individual's health to be monitored, for up to 10 days. Any symptoms suggestive of swine flu should be reported to the GP immediately, who will advise on appropriate action. The employee would still be expected to attend work during this period or carry out work from home if the authority deems that the most appropriate.

4. Do we need to put in place special communication and preventative measures?

Employees should be provided, via existing communication routes such as notice boards or the intranet, with clear information about what to expect during a pandemic, how to minimise any risk of infection and how best to manage any infection. Care must be taken to ensure that those absent from the workplace are kept informed e.g. women on maternity leave.

5. How do we manage any resulting absence?

Employees will be expected to attend/carry out work during the period of any pandemic to help provide services to the authority’s service users and clients. In the event that an employee has to remain absent from work because they are infected with swine flu, any absence should be treated as sickness absence, either self certified or certified by the employee's GP. The authority may want to deal differently with individuals who have put themselves at risk by travelling to an ‘at risk’ area against government advice. They will however, still be required to stay away from work in line with medical advice.

6. What about other absence?

Other planned absences such as annual leave, special leave, flexitime leave, or leave for public duties, (or even compassionate and parental leave in very critical instances) may need to be cancelled or rearranged during a pandemic to ensure sufficient cover can be maintained. Cancellation will have to be in line with any further national advice or guidance and based on the need to maintain necessary services. Leave requests should also be prioritised, e.g. special leave requests for bereavement situations and public duties which must be provided by law, will clearly take precedence over non-critical flexitime or annual leave requests.

As it is necessary to balance the need for work and rest during a prolonged pandemic period, leave may not automatically be cancelled and new requests may be considered, but can be cancelled and turned down respectively, where it is considered operationally necessary, and alternative dates will have to be agreed once the pandemic has ended. This may mean that authorities will need to give retrospective consideration to allowing more leave than normal to be carried forward into the next leave year. In accordance with legal requirements, individuals should take a minimum of 28 days leave (including public holidays) per leave year – pro rated as appropriate. Any requests for leave made for or during the pandemic should have specific advance approval from the appropriate manager.

If leave does have to be cancelled for operational reasons, and unavoidable costs are incurred as a result, then it would be reasonable for authorities to meet some or all of these costs, depending on the circumstances, if they are not otherwise recoverable through insurance claims etc. However, this is a matter for the authority’s Corporate HR Teams to determine in its local policy / Business Continuity Plan.

7. How do we manage staff where we have had to close the service for organisational reasons?

If services are temporarily shut down in response to the agreed plan, the first stage would be to seek to redeploy people to appropriate areas of work that still need to be delivered; this may involve some retraining. If, however, this is not possible then employees may be asked to stay at home, for which they will continue to receive contractual pay (but not for any elements of pay that are dependent on the work actually being carried out). They will have to be continually available for work during this period (and so cannot arrange leave or be out of travelling distance from work without going through the normal request for leave process) and may be called in to attend work at short notice.

8. How do we respond to our employees who may have to undertake caring responsibilities at very short notice?

There may be circumstances where localised closures of schools or early years and group child care settings are necessary to contain the spread of infection. Decisions in these cases will be taken locally on the basis of advice from local health protection teams.

It is too early to judge whether swine flu will be severe enough in the UK to lead to a government decision to advise that all schools and settings in an area should close. Any decision to advise all schools and settings to close would be taken by the government and communicated to schools through regional government offices who would inform the local authority.

Home working and home-based working may be a feasible response for a limited number of staff in the circumstances. Local authority employers will want to support staff with nursery and school age children in the event of pandemic related school closures. A combination of paid and unpaid leave building on the existing carer’s leave provisions may be appropriate. It should not be forgotten that the statutory right to take time off to deal with unforeseen events regarding dependants does not provide the right to take extended leave, but only the right to take off what time is reasonable to allow the employee to deal with the unforeseen event. Similar principles should be followed in relation to other dependants, the disabled and older relatives. You must strike a balance between the need to maintain services and the pressures that fall on employees who have childcare and other caring responsibilities.

9. What responsibilities do employees have to their employers in these circumstances?

Authorities should provide whatever reasonable support they can to employees to enable them to continue to provide services. To minimise the risk of infection and absence, employees have a responsibility to:

Attend work if well, unless instructed to do otherwise. Be open and honest if they feel that they are unwell with flu, contact their GP by phone or seek advice from NHS Direct (0845 4647), and report back to their line manager as appropriate.
Be flexible in assisting in the delivery of the authority’s services
Follow general infection control practices and good respiratory hand hygiene which can help to reduce transmission of all viruses. The Health Protection Agency has provided advice on measures which can be taken to prevent infection. This includes:
- covering your nose and mouth when coughing or sneezing, using a tissue when possible;
- disposing of dirty tissues promptly and carefully;
- maintaining good basic hygiene, for example washing hands frequently with soap and water to reduce the spread of the virus from your hands to face or to other people; and
- cleaning hard surfaces (e.g. door handles) frequently using a normal cleaning product.
Follow any national guidelines issued at the time on reporting flu symptoms, treatment, use of public transport, attendance at public gatherings, etc
Keep their department informed about any new or continuing absence and the reason for it, in line with the published reporting procedure, and keep any absence to a safe minimum to make it easier to maintain services
Keep their manager up to date with contact details for themselves and next of kin, and help the authority to help them and maintain services by sharing information on travel arrangements and caring responsibilities
Keep themselves abreast of information issued by their employers on how it intends to handle flu pandemic.

10. Is swine flu an ‘infectious disease’ within the meaning of Para 10.9 of the Green Book?

If the employees have been unknowingly exposed to a person with swine flu or, indeed, any other flu they are not infectious until they develop symptoms. Therefore, the simple fact that they may have been in contact with someone should not preclude them from being at work. If they develop symptoms, then they should be removed as soon as possible, advised to go home and follow medical advice, which may include a course of anti-viral medicines.

However, if they have been exposed to someone who later develops symptoms and has been tested positive for swine flu - again they should still come to work as they are not infectious until the symptoms develop.

If the employee is exposed to someone with symptoms and the medical advice is go home and take anti-viral medicine, then this is justifiable sick leave and they should receive normal sick pay.

If the pandemic becomes severe, details of the Green Book’s provisions are unlikely to be a high priority for employers. People will be calling in sick when they are well, simply because they are afraid of coming into contact with infected people. For those staff who fail to turn up and who are not ill - this clearly would be a disciplinary issue. Remember, that if the pandemic escalates, those who think they are ill will be actively encouraged NOT to go to their GP surgeries and, therefore, certified absence may not be an issue at that point, simply because certificates will not be issued. Those suffering symptoms will call the flu hot line, describe their symptoms and if they tick the boxes they will get the appropriate medicine.

11. Can I ask for volunteers to work in an area they do not normally work in?

Yes, volunteers from existing employees whose contractual role/duties do not normally cover the work in question can be asked to carry out other roles, but those who volunteer should be provided with adequate basic training and information to enable them to carry out the task safely and effectively. If employees from other areas of the authority volunteer to cover essential service delivery areas they will still have to meet any basic requirements of the role, e.g. checks or qualifications; if these cannot be met, then the situation will have to be subject to a relevant risk assessment agreed by a senior manager.

12. Can we redeploy individuals?

Flu pandemic will mean a change to your service demands and employee attendance levels. Therefore, managers will need to identify any critical areas that are likely to have a shortage of employees as the pandemic develops in line with the Business Continuity Plan.

Employees are expected to be flexible to ensure that services can be maintained. The general principle is that the authority should make the best use of resources to support its communities and that resources should be prioritised towards critical services. Where necessary, employees who are suitably trained or skilled to carry out tasks can be asked to provide temporary cover if the number of employees available for work who normally provide the service becomes too low. This might apply across sections/departments as well, particularly for those employees who are not able to work in their own area if the service is suspended. In the exceptional circumstances of a flu pandemic, the underlying principle is that if someone has an acceptable level of training or skills and knowledge to carry out the basic task, it should be reasonable to expect them to do it. The aim is to get the most out of the employees who are fit to work, which will mean employers obtaining flexibility from employees and key considerations in achieving that are:

If you need to change an employee’s role or job location, the first thing to do is to check the contract to see if it contains a flexibility clause allowing you to make the changes
Even if it does not have a flexibility clause, if in practice employees routinely change roles or place or work, there may be an implied term that you can change the employees’ roles and working location
The authority should also make sure that the employee is sufficiently trained to carry out any new tasks/role and if they are working from home that the necessary risk assessments are in place

However, the best way of obtaining flexibility is to get employees’ agreement to changes and, therefore, the focus should be on reaching agreements on the framework and protocols on staffing issues with local staff-side organisations.

In all cases though, no employee should be pressurised to undertake other duties that they are unfamiliar with and that they do not have the basic skills or knowledge to complete the tasks required. If an employee refuses a reasonable request, please refer to question 16.

13. What about bringing in agency workers to cover absences?

It may be possible to use agency worker to cover some absence, although contingency planners/managers must bear in mind that their availability will also be affected in the same way as the authority’s employees, and so should work with agencies as early as possible. Any temporary or agency workers brought in should continue to have the appropriate employment checks, for example, with the Criminal Record Bureau (CRB), carried out before they are employed. Please bear in mind the timescales for completing these checks when planning to use this option and if they cannot be met, then the situation will have to be subject to a relevant risk assessment agreed by a senior manager. All agency employees, including those not required as a result of the closure of services will need to be managed via the agency in the normal way. The agencies will also need to manage agency workers through their Business Continuity Plans and maintain communications with them so that they are fully aware of the situation as it progresses.

14. What if we need people to work additional hours?

Employees will need to be flexible in respect of their working hours where possible to facilitate the provision of services. Where additional levels are needed to cover absence, line managers should ask for volunteers from existing employees willing to work additional hours due to increased sickness absence levels in critical service areas, and agree such additional working hours subject to the commitments in the Working Time Regulations (see BIS guidance). Care should be taken to ensure those working additional hours do not put their own or others’ health and safety at risk, and that they get regular rest breaks. If employees are asked to work, they should be remunerated through time back arrangements such as TOIL, or paid overtime or shift allowances.

15. What if the employee refuses to attend work or perform their duties?

It is anticipated that employees will continue to attend, perform their duties and be flexible to ensure that services continue to be provided. Personal protective equipment advice (either to use or not use) should be followed. If difficulties arise with a refusal to attend for work or a refusal to carry out certain duties, managers should ascertain what the concerns are, consider what, if anything, can be reasonably addressed and do so, and encourage the individual to work.

If this has been done, but the individual still refuses to attend or perform the task then this may constitute unauthorised absence or part performance, (i.e. where they are only prepared to carry out certain tasks or duties and not their full job descriptions or requirements) which may be a disciplinary issue and following disciplinary action may justify pay being stopped. The manager should explain the individual’s contractual obligations and the consequences of refusing to work, and if there is still no change in the individual’s position, immediate advice should be sought from HR to ensure an appropriate and consistent approach can be taken.

However, authorities should also keep in the mind the industrial relations consequences of taking disciplinary action, and the need to follow the Acas Code on Discipline and Grievance (the Code).

16. So how can the employer achieve maximum flexibility through making changes to employees’ contracts?

The first step is to try and negotiate the change with local employees representatives, or if that is not possible on an individual basis. However, if those changes cannot be agreed the employer has to weigh up its options.

If the employer wishes to go ahead with the proposals as they are, then the only option is a formal dismissal and re-engagement. The appropriate consultation process must take place and notice to terminate the contracts of the employees concerned must be given and, at the same time, a new contract with the varied terms must be offered which will commence on the expiry of the notice period. It must be made clear to the employee that this is a new contract. If the proposal is for 20 or more dismissals, then it may not be necessary to follow the statutory consultations process to the letter, as it is probable that there would be deemed to be special circumstances, meaning that the obligation woud be to comply only with what was reasonably practicable in those circumstances. During the notice period the old terms and conditions must be strictly adhered to, in order to avoid claims for damages. However, the authority may well take the view that this course of action would be inappropriate in the circumstances of a flu pandemic.

17. How do we operate HR policies during the pandemic?

The watchword should be business as usual for as long as possible on the management of staff issues, however, it may be that the application of some HR policies such as disciplinary, grievance or appraisal processes may need to be suspended during the period of a pandemic to allow scare resources to be directed to service delivery. In those exceptional circumstances, it may be reasonable that all timescales in policies should be suspended for the duration of the pandemic. Activities should be reactivated when it is operationally possible to do so. This should ensure any further action is procedurally acceptable in the circumstances, and anything that needs to be backdated as a result should be done as soon as appropriate.

18. How can we best support employees?

Employers are under a legal duty to maintain health and safety even during an emergency. Both the employee and their colleagues may have concerns about the risk of contracting swine flu. The employer must take all reasonable steps to protect employees’ health and safety, provide clear and accessible communications about the likely risks and take a supportive view of those who have caring responsibilities. It may also be helpful to reassure employees by providing them with information (such as the web links below) and/or provide opportunities for employees to discuss concerns (for example, with their line manager or the council's occupational health or counselling service).

19. Self-certification and SSP and OSP payments

Click here for detailed information on self-certification, SSP and OSP payments

20. Will authorities need to draw on their indemnity insurance where they have made arrangements for their staff to be vaccinated?

If an authority has made arrangements for any of its employees, for instance social care staff, to be vaccinated, it should not have to draw on its indemnity insurance. This is because an authority only has to make a claim on its indemnity insurance where it is legally liable, which could only be established where it had been negligent or breached a statutory duty.

As long as the vaccine has been administered by a trained and competent person in accordance with the guidelines, and has taken place voluntarily, there should not be liability, hence no need to draw on the indemnity insurance, even though some employees may have an adverse reaction.

21. Can authorities instruct staff to be vaccinated?

An authority which offers vaccination to its staff cannot compel any individual member of staff to be vaccinated. Therefore, no sanction can be applied to an employee who refuses to be vaccinated.

22. What payment arrangements for local authorities are available for carrying out swine flu vaccinations for independent sector workers, personal assistants and the council’s directly managed social care workers?

NHS hospitals and GPs have now begun giving their first doses of swine flu vaccine to the patients facing greatest risk of complications. Priority groups will receive the vaccine first, including those with long-term health conditions, pregnant women, people who are in close contact with someone whose immune system is compromised and frontline health and social care staff.
The Department of Health has agreed to make financial support available to local authorities for the vaccination of independent sector workers, personal assistants and the council’s directly managed social care workers.
Full details of these funding and payment arrangements are included in a separate letter from the department, dated 10 November 2009.
Local authorities were asked to provide the Department of Health with specific information by 20 November 2009.
The Department of Health to notify local authorities by 3 December 2009 of the allocation available to them in order to help meet the cost of their vaccination programmes.

23. Where can I find useful Information?

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