Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

In the midst of recent and widespread fear and panic surrounding the H5N1 swine flu virus, many employers are appropriately inquiring as to how they can protect their operations, employees, clients and customers from outbreaks and pandemics including the current swine flu and even the avian flu of years past.

Any actual or potential outbreak necessarily poses many legal employment issues including those relating to safety, health/medical leave, reasonable accommodation, privacy/confidentiality, shortage of staff, compensation, travel restrictions, communication, revenue/cash flow and possible reductions in force.

What do these issues mean for employers? First, employers should take this opportunity to develop a communicable disease policy, which may address (i) any employee obligations to report a diagnosis or symptoms of any communicable disease and/or any travel to areas in which the employee may have been exposed; (ii) any travel restrictions to be imposed on employees; and (iii) any infection control and/or personal protective equipment plans and practices. Employers should also develop business continuity/strategic plans and policies, which address all aspects of the company in the event of an outbreak including communications, information technology (including remote access systems), health/medical, legal, the appointment of crisis teams/captains and other related issues.

Employers must also plan for the impact that any outbreak may have on their business function and must consider how the company will operate without key employees, suppliers, materials, etc. Lining up alternate vendors, cross-training employees, and developing a backup plan in the event that travel is restricted or eliminated will all serve a company very well during any pandemic. Similarly, companies must prepare for the impact of any outbreak on employees. In particular, employers should consider and address the effect of employee absences, and how the company can reduce face-to-face contact, track vaccine information and monitor employee access to healthcare, mental health, and special needs.

While the current swine flu outbreak may not develop into the plague forecast by the media, employers should take advantage of the warning it provides to develop and ensure their communicable disease and business continuity plans and procedures are in place and appropriate to protect valuable business interests.

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Recently, in State of New Jersey v. M.A., the New Jersey Appellate Division held that an employee did not have any expectation of privacy in the contents of his work computer. In M.A., the employee was terminated and the employer reported to the police that the employee had engaged in theft of company funds. The police conducted a warrantless search of two computers in the employer’s possession. One of the computers was maintained in the former employee’s office and the other was a laptop shared by the former employee and a co-worker. The former employee had created confidential passwords on both computers to block access to his personal information. At the employee’s criminal trial, the employee claimed that the search of his computers constituted an unlawful search.

The court, relying on several facts, rejected the employee’s argument. The key facts included: both computers searched were owned by the employer and maintained in the employer’s place of business; all employees had been advised upon hiring that all workplace computers were property of the employer; the desktop computer that was searched was connected to the employer’s network, giving the employer equal access to it; the laptop searched contained the employer’s business software and was shared by another employee; and lastly, the employee’s office was never locked.

Although a criminal case, this case highlights the importance of employers implementing and distributing a clear and unambiguous written policy informing employees that their work computers are the employer’s property and no employee should have any expectation of privacy in any materials contained therein. Employers should also be cautious about giving employees exclusive access to any computer.

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