Under the new system coming into force in April 2010, GPs will not be asked to determine whether a worker is 100 per cent fit to return to work. Instead, the onus will be on employers to determine what a patient declared ‘may be fit for some work’ could or could not do at work.

But I can’t see the new system significantly changing behaviours, especially of doctors who are so crucial to the picture. GPs are reluctant to get involved in discussions about work. They make a decision that someone is unfit to work or well enough to go back to work, but they do not want to, or really cannot, get involved in the gradations of how much work an individual could or could not do.

That is not going to change. (For a different view hear Royal College of General Practitioners’ chairman’s podcast on fit notes.)

And ever fearful of litigation, few employers are likely to significantly alter their approach to long-term sickness absence as a result of the new scheme. (See Employers Risk DDA Claims Under New Fit Note Rules for more.)

For an idea of how these schemes already work in practice in the public sector – or don’t – see Signal Consulting Jane Pound’s Worried Well.

In short, I don’t believe the fit note scheme will affect more than a very small percentage of absences. It is essentially a bit of propaganda to try and massage the rates of unemployment verus long-term sickness.

Back to Work Interviews for Terminally Ill Employees Criticised suggests individuals are being threatened with benefit cuts if they do not attend these meetings or have medical examinations.

But, my recent experience suggests it is not just government agencies that get this wrong.

The first case involves an organisation with a very generous sick pay scheme – three months’ full pay and three months’ half pay and then an insurance-backed long-term incapacity payment scheme. The insurance scheme pays half salary on top of the state’s incapacity payments for as long as the individual lives, or until they can return to work.

Unfortunately, the insurance company’s cavalier requests for information and medical assessments suggest it is not just the Department for Work and Pensions or Job Centre Plus who can be insensitive.

Thanks in this case to a dedicated and caring HR manager acting as a go-between between the employee and the insurance company,  the worst excesses of this pressure were deflected. But, I suspect such diligence may not be evident – feasible even – in many HR departments. And the consequences may be traumatic for very vulnerable people.

Of course, such long-term insurance based schemes are expensive for companies and will come under increasing pressure where employers need to cut costs. However, employers can still do a lot to make things easier for terminally ill staff.

Another client did not have long-term sickness cover, but had a provision in their sick pay scheme to allow sickness cover to continue in the event of a life limiting illness.  Fortunately, they have only had to extend this cover on one occasion, but the goodwill throughout the organisation was momentus.

Dealing with staff with life-limiting conditions is always going to be a highly sensitive issue. Having decent policies and procedures in place in advance of such a situation arising is important. But equally important is good communication between the organisation, the individual and medical advisers.

Some firms went into overdrive to create detailed
contingency plans. And these plans will stand them in good stead for the future, as long as they remember where they are and have recently briefed staff on what is required of them.

Other employers, particularly our smaller clients, went out and bought anti bacterial hand washes and boxes of tissues. Largely they were simply hoping for the best.

Well, so far the pandemic has failed to materialise on the expected scale. Many organisations have pushed the risk of a swine flu pandemic onto the back burner.

But don’t be deceived. There are rustlings afoot that seem to suggest swine flu could be mutating into something more serious. We have heard mutterings from some very senior health sources that the real testing time will come when the children go back to school after the Christmas break. The bugs will have had a chance to intermingle to possibly produce a more serious form of flu.

We hope we are not scaremongering, but do dust down the contingency plans. Home working, remote working and flexible working all have a part to play in ensuring you can keep your business ticking over for a few weeks with a reduced workforce. There may also be a much reduced public transport service which could make it very difficult for those that are fit to get to work.

With good luck and possibly some good cold weather, we may just ensure the bugs are killed off and don’t get a chance to mutate. However, my Finnish friend reckons it has to be – 20 at least for that to happen.

So even though it is chilly now, it may not be sufficient to prevent either a swine flu or seasonal flu outbreak in the New Year. Businesses that come out of this the best, will be those that prepare for the worst.

Last month, the ECJ issued a landmark decision (Pereda v Madrid Movilidad SA) ruling an employee who is sick during planned holidays has the right under the European Working Time Directive to take that leave at a later date.

The ruling effectively gives staff who fall sick during annual leave, or are sick before and during when the annual leave was planned, the right to carry holidays over. The ECJ requires employers to accommodate such requests, even where it means carrying leave over into a new holiday year.

Unfortunately for British employers, this ruling contradicts UK sickness regulations under the Working Time Directive and so creates some confusion. As a result, a change in UK sickness law may be needed to clarify the position for employers and employees.

The most common question from clients is: “What should I do if someone is sick while they are on holiday?”

While we wait for clarification on the ruling from the House of Lords, my advice is agree to reschedule annual leave if an employee says they were sick during their holiday. Ask to see evidence – a doctor’s or hospital certificate or evidence they attended one – and ask if they are happy to use their annual leave for the period in question. If they do not want to, agree to accrue the holiday entitlement – even if it is in another holiday year.

Importantly, do not tell an employee who was sick while on holiday, or who is sick leading up to a holiday, they have lost their holiday entitlement. Discuss it with them, and reschedule the holiday time.

As for employees on sick leave when their annual leave is due, do not force them to take it. Allow them to take the leave at a later date – even another holiday year.

Of course, this ruling creates many issues for employers. The sooner the House of Lords clarifies the position the better.

For more on current sickness absence legislation see our Holiday Entitlement Factsheet

The idea on the table was that instead of saying someone was totally unfit for work, it might instead be stated what they could do with adaptations to the workplace, or on the basis of part-time or shorter working days.

For me there are considerable issues here. While admirable in its intention, I’m not sure this is the right solution.

For larger organisations with occupational health services, it might be possible to have a proactive involvement regarding a phased return to work. But for the smaller business, it could be an administrative nightmare.

As well as costs associated with making changes to accommodate a partially fit employee, there is also tremendous scope for disputes about workplace adjustments. That is a lot of effort for what might only be a short-term need.

There is also concern GPs, increasingly pressurised to provide such certificates to cut the number of long-term sick, might feel patient relationships are undermined as a result of closer liaison between themselves and patients’ employers.

Similarly, patients might feel pushed into returning to work too early for their own good.

The whole history of sick notes is a contentious one. GPs used to have to issue sick notes after three days’ of absence. This was subsequently increased to seven days following pressure from the British Medical Association. Increasingly, however, GPs are saying the existing system is not fit for purpose.

Whether the fit notes scheme will help is still somewhat suspect.

Is it valid? Possibly.

A survey by First Care of 62,000 workers from 30 organisations found absence levels up to five days per 1,000 employees in July 2009, compared to 1.7 days in July 2008.

So we do suggest you carry out a return to work interview and keep good records of the reasons employees have been away sick. It is quite unusual to catch flu twice (except for a new strain) as you have usually built up immunity to the virus. So a gentle reminder to one and all may be beneficial (see our Managing Sickness Absence Factsheet for more).

Don’t forget also that older workers may have a greater immunity to the swine flu virus as they will have been exposed to other flu viruses in the past.

But whether it’s down to increased immunity or a greater propensity by younger people to ‘throw a sickie’, it’s interesting to note 16 to 20-year-olds took 11 days sick leave per 1,000 employees in July, compared to 2.8 days for the over 60s.

We have blogged about the HR implications of swine flu many times and what SMEs need to do – most comprehensively in the post Preparing for Flu – What to do Now. At the risk of repeating myself, I thought it might be worth noting what seems too often to still be missing.

Contingency plan

At its most simple, this should outline what the business will do when more employees are sick.

• A starting point is to work out the minimum number of people required to run a specific business area.
• Look at transferable skills in the business and how these could be used in a crisis.
• Would it pay off to train key workers now so they can be more flexible when and if the time comes?

Swine flu policy

This should state clearly what your policy is and what staff are required to do about specific issues relating to the swine flu outbreak, for instance:

• What is the company’s policy on staff who do not want to come to work for fear of contracting swine flu during a workplace outbreak?
• What is your policy on someone who has been exposed to the virus?
• Will such absences be paid or unpaid? Most organisations cannot afford for this to be paid time off, so it will be unpaid. This might come under your Parental Leave Policy, where the employee is the parent of young children. Or you might give it as time off to deal with domestic emergencies to which all employees are entitled.
• Might staff be asked to take such time off as holiday leave? You can only do this with their agreement.

Policy review

It is wise to ensure your existing policies are up-to-date and robust enough to cover a swine flu crisis. You might want to consider modifying a number of policies including:

• Sickness absence
• Dependant leave
• Flexible working
• Maternity leave

Informed and up-to-date

There is so much misinformation out there, employers need to take a lead on knowing the government’s latest advice. Be careful you only pass on government guidelines. Do not develop your own as you may risk possible negligence claims – as yet an untested area of law.

Tissues and antiseptic hand wipes

It’s basic, but it can stop germs spreading. Make sure you also provide proper disposal methods. Antiseptic wipes have already caused blocked drains in a number of areas.

If approved – most likely in the autumn when the incidence of the pandemic is expected to increase – employees will need to fill in a self-certification form to cover any absence up to fourteen days (currently seven days). So until further notice, the seven days for self-certification still applies.

But there is concern the extension could provide an incentive for some people to take more time off than they need. So what can you do to stop this happening?

The main thing is to ensure staff understand your policy on sick leave reporting. As with any employment policy, the key is to make sure everyone knows what the policy is and the reason for it. Staff must also know the policy is applied fairly and consistently.

So how should your policy change to reflect self-certification?

A simple solution to deter employees from taking unnecessary or excessive leave might be a return to work interview for everyone returning from any period of absence.

The interview need not be overly formal or onerous. However, it should be done for everyone returning from sick leave, irrespective of whether or not they had swine flu. Held in private and handled in a sensitive and professional manner, the interview should:

• Welcome the employee back to work.
• Ensure they are fully fit to return to work.
• Identify the reason for the absence and confirm the length of absence.
• Identify and address any problem (work-related or otherwise) that may be causing or contributing to the absence.
• Investigate or identify any adjustments to the workplace, hours or duties that may reduce or eliminate future absences.
• Agree immediate priorities.
• Update the employee about developments.

By making this a routine event, everyone will be aware their absence has been noted. But as important, it will make it clear you care about the employee’s welfare and are glad to see they have returned to work.

If people feel valued they are more likely to return to work as they get better rather than taking the full 14 days.

See also our 10 Steps to Prepare for Swine Flu

So even if you have an employee who has been transferred to a long-term sickness cover insurance-based scheme, when and if they do return (or retire) they should still be paid for accrued holiday in that year.

What is not clear at this stage is whether it is just for the final year of their employment.  The argument would be that they have been paid fully for the years in question which would include a number of weeks’ holiday pay.

The issue is less clear as to what length of time the payment could be backdated to – a potentially costly additional cost for hard-pressed businesses of whatever size.

See Managing Sickness Absence Factsheet and Holiday Entitlement Factsheet for more.

Up to 75 per cent of the workforce could be absent at the peak of a severe pandemic. So whatever you do, do not wait and see what happens.

Ah, but you have a crisis plan? Sorry, it is unlikely to be sufficient. Flu pandemic contingency plans need to take account of changed ways of working that may last for months - not just a few days.

So now the good news: the best advice is really just common sense. But it is nonetheless vital. So involve the right people – HR, health and safety and senior management – and get planning.

Ten things to do now

1.       Create contingency plans, including an emergency communication plan with key contacts and chains of communication, and put someone in charge.

2.       Tell employees the plan exists and explain what they need to do.

3.       Review sickness policies to ensure they deal with all the issues, including the potential for employees to be absent for extended periods, and the appropriate compensation in such situations (see our Managing Sickness Absence Factsheet).

4.       Establish minimal staffing levels and identify a front-line group of essential employees.

5.       Identify and keep records of skills and capabilities so employees can be redeployed.

6.       Give appropriate training to workers who may be required to carry out unfamiliar tasks.

7.       Be prepared to hire and train temporary staff to supplement departments where staff numbers have fallen below the minimum required.

8.       Introduce home working and review your communications – consider extending flexible working now so the structures are already in place.

9.       Review staff rosters to allow for adequate leave periods to maintain a sustainable response over several weeks.

10.    Encourage basic hygiene - even using a handkerchief could help prevent the spread of a potentially fatal disease.

For information for third sector organisations see Pandemic influenza: supplementary information for third sector organisations from the Cabinet Office and Department of Health

See also:

Directgov – the primary government website for essential cross-government swine flu information.

NHS Choices – the primary public-facing health information and advice service.

Swine flu information line – 0800 1 513 513 (0800 0 514 142 in Northern Ireland).