The NLRB’s complaint claims that American Medical Response of Connecticut, Inc. fired one of its employees because she posted less-than-flattering comments about her supervisor on Facebook. In particular, the employee used expletives and implied that her supervisor suffered from psychiatric problems. Some of the employee’s co-workers expressed support for her in their comments in response to the posting. Although the employer contends that the employee was terminated because of complaints about her performance – rather than anything the employee posted on Facebook – the NLRB nonetheless issued a complaint and scheduled a hearing for early next year.

At the heart of the NLRB’s case is the well-settled principle that employees generally have a right to communicate with one another about the terms and conditions of their employment. Such so-called protected concerted activities cannot form the basis for any adverse employment actions without running afoul of federal labor law. According to the NLRB, the fact that the communications in this case took place on a social media site does not in any way lessen the protections afforded the employee. Indeed, Acting General Counsel for the NLRB, Luke Solomon, suggested Facebook is akin to a “water cooler.” As a result, the NLRB took into account the employer’s policy of prohibiting employees from making negative comments about supervisors or “in any way” depicting the company on the Internet without permission in reaching its decision to issue a complaint.

Although it remains to be seen whether the NLRB will prevail, its decision to issue the complaint serves as a timely reminder to all employers. Regardless of whether employees are represented by a labor union or not, the National Labor Relations Act applies to all employers, and employers may not interfere with employee-protected concerted activity. Policies that purport to prohibit employees from engaging in “all” or “any” communication regarding the employer can draw unwanted attention from the NLRB. It is no defense that the prohibition applies only to social media or was not intended to chill employee rights.

A well-drafted, comprehensive electronic communications policy is the key to avoiding similar problems. Such a policy allows employers to protect their legitimate interests without unlawfully interfering with protected concerted activities or other employee rights.

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H1N1 and Seasonal Flu Vaccines
Aetna will cover H1N1 flu vaccine administration for members whose benefit plan covers preventive services, just as we have always covered the seasonal flu vaccine. We will pay for one or two doses of the H1N1 vaccine, based on recommendations of the Centers for Disease Control and Prevention (CDC).

The federal government will pay for the H1N1 vaccines and the supplies needed to administer them. Aetna will reimburse providers for administration of the vaccine.

State and local public health departments will designate which public and private sites will be given the vaccine. Public sites could include public health clinics and clinics located in schools. Private sites could include provider offices, workplaces or retail settings. Aetna is encouraging participating providers to register with their state’s Department of Health to become vaccinators. A number of retail sites, including Minute Clinics/CVS, Take Care Health, and RediClinics, also are expected to be vaccinators. We will encourage our members to seek vaccines at any of these available outlets (note that emergency rooms are not the appropriate place to seek vaccines).

Employers can seek to be designated by their state or local public health department as vaccinators and have vaccine shipped to them, or they can hire a commercial designated vaccinator that will provide the vaccine on-site. We expect that at least some of the corporate seasonal flu shot vendors used by Aetna will be able to offer H1N1 vaccines at employer worksites, but this may vary by state. We can share more information on this once the vendors are able to register and be designated as vaccinators by the states.

It is expected that each person will need to have two H1N1 vaccines, three to four weeks apart. A separate vaccine is needed for the seasonal flu.

Primary target groups for H1N1 vaccination will be:

• Pregnant women
• Contacts of infants <6 months old
• People 6 months to 24 years old
• Health care workers/emergency personnel
• Adults under 65 years old with high-risk medical conditions
• The next group after this is healthy adults 25-64 years old
• The final group is adults 65 and older
• Aetna will rely on providers to make determinations about when an individual should receive the vaccine, in accordance with CDC guidelines.

Should any of your plan members become ill, we treat H1N1 as any other disease under all of our plans. We do cover the prescription drugs Tamiflu and Relenza, which can be used to treat the H1N1 virus.

Updated Guidance for Businesses and Employers

Your own organization is probably working to ensure it has its own plans in place to deal with H1N1. Updated federal guidelines offer businesses and employers a range of options for responding to 2009 H1N1 influenza, depending on how severe the flu may be in their communities. The guidance says business planners should assess their business functions to determine the threshold of absenteeism that would be potentially disruptive and plan ahead to take increasing measures as absenteeism escalates toward those thresholds. More information and helpful communications for employers are available at:

• CDC Guidance for Businesses, Employers, and Workplaces to Plan and Respond to 2009 H1N1 Influenza
• Preparing for the Flu: A Communication Toolkit for Businesses and Employers

If you would like information on Aetna’s business continuity planning, please see our Overview of Aetna’s Preparedness for Pandemic. This section of the employer site on aetna.com includes a high-level look at Aetna’s business continuity plans for a pandemic, as well as frequently asked questions on our preparations and a list of resources.

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Visit http://www.cdc.gov/h1n1flu/

Call 1-800-CDC-INFO for more information

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