During a flu pandemic, if an employee has flu symptoms, or has been in contact with someone with flu, can he or she be instructed not to come to work?

Employers are under a duty to ensure the health and safety of all their employees and to provide a safe place and system of work. These duties exist under both the common law and statute. Employees are also under a duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their acts or omissions at work.

In light of the above duties, and the serious implications for its business if pandemic flu is contracted and spread in the workplace, an employer would be justified in instructing an employee with flu symptoms not to attend work, and to seek a diagnosis from a medical professional and not return to work until the symptoms have cleared.

In relation to an employee who does not have flu, but who has been in contact with an infected person, the employer should check advice from the relevant public health body on whether or not it is necessary on risk grounds to ask such people not to attend work. However, it is open to the employer to agree with the employee that he or she will work from home or return to work only if he or she does not develop symptoms during the incubation period.