A serious concern has arisen that over the next 12 to 24 months Canadians could suffer a flu pandemic that could cause significant social and economic disruption, including possible closure of our school system.
The World Health Organization ("WHO") reports that health experts have been monitoring a new and extremely severe influenza virus – the H5N1 strain – for almost eight years. The H5N1 strain first infected humans in Hong Kong in 1997, causing 18 cases, including six deaths. Since mid-2003, this virus has caused the largest and most severe outbreaks in poultry on record. In December 2003, infections in people exposed to sick birds were identified.
Since then, over 100 human cases have been confirmed in four Asian countries (Cambodia, Indonesia, Thailand and Vietnam). Over 60 people have died of this virus. Direct contact with infected poultry, or surfaces or objects contaminated by their faeces is considered the main route of human infection. The virus appears to be on the verge of a key mutation that allows it to be transmitted between humans. Should the H5N1 strain evolve to a form as contagious as normal influenza, a pandemic could begin.
WHO states that once a fully contagious virus emerges, its global spread is inevitable. Countries might, through measures such as border closures and travel restrictions, delay arrival of the virus; however, they cannot stop it. WHO reports that given the speed and volume of international air travel today, the virus could reach all continents in less than three months.
Because most people will have no immunity to the pandemic virus, infection and illness rates are expected to be higher than during seasonal epidemics of normal influenza. High rates of illness and worker absenteeism are expected and these will contribute to social and economic disruption.
The Ontario Government has developed an Ontario Health Pandemic Influenza Plan in response to a possible health emergency. Its goal is to minimize serious illness and overall deaths through appropriate management of the Ontario health care system. As part of its Plan, the Ontario Government is considering closing all educational institutions and sporting events and limiting mass transit. The pandemic influenza has the potential to infect up to 50% of the population and many people would be unable to work.
School boards in Ontario would be severely disrupted. Community-based measures to increase social distancing to contain the virus will likely result in school closures. Either schools will be closed by public health authorities or at some point in the epidemic, they will lack the critical mass of people (students, teachers and staff) needed to sustain dayto- day operations.
From a legal perspective, a number of questions arise: What is a school board’s standard of care? What risk management strategies can be taken to reduce exposure? What steps can be taken to reduce or minimize legal liability and protect the interests of our schools?
Standard of Care
Canadian courts have held that the standard of care owed by educators to students is that of a reasonably careful or prudent parent in the circumstances. In other words, the law requires that an educator’s actions conform to what a careful parent would do. This includes the duty to protect students from reasonably foreseeable risks of injury.
Under section 265 of the Education Act, the principal of a school has a duty to maintain proper order and discipline. A principal also has a duty to give assiduous attention to the health and comfort of pupils under his or her care. In addition, Regulation 298 under the Act provides that a principal is in charge of the organization and management of the school, as well as the instruction and discipline of pupils in the school.
Common Law Liability
A serious threat of liability for employers arising from a public health emergency, such as an influenza pandemic, is through possible claims of negligence. While the law in the United States has dealt more extensively with negligence suits resulting from these types of events, the apparent increase in these events is a concern for Canadian employers. There are a range of possible negligence claims that can be brought against an employer. They can be initiated by a school board staff member or student, or by a third party who has been harmed. The victim may allege that the school board has failed to discharge certain duties. This includes a failure to warn of a reasonably foreseeable risk, a failure to maintain a safe workplace, negligent hiring of a person or negligent supervision of a person.
A review of the case law indicates that the measure of an employer’s liability in negligence rests on its awareness of events in its workplace and whether the employer has responded reasonably based on that knowledge. The concept of the "foreseeability" of an injury is key to the determination of whether an employer had a legal responsibility to take action to prevent an incident, and if so, whether that action was adequate to discharge its duty toward the victim. In considering foreseeability, it is not only what an employer knew that is important, but also what it ought to have known that will be considered in hindsight by the courts. In the present circumstances, a school board must be able to demonstrate that, under the given circumstances, it had a reasonable awareness of its work environment and had correspondingly taken due diligence and reasonable care to reduce the risk of an illness or injury.
Occupational Health and Safety Act
Employers have a responsibility to take reasonable care to provide their employees with a safe workplace. However, with respect to health and safety hazards in the course of an employees duties, the Occupational Health and Safety Act ("OHSA") has replaced those common law responsibilities. The OHSA came into force in 1979 and was designed to set administrative, legal and procedural standards for health and safety in Ontario’s workplaces. The OHSA achieves these ends through an "internal responsibility system". This system places responsibility for occupational health and safety on the stake-holders in given workplaces by creating duties for employers, supervisors and workers alike.
The OHSA also contains duties for supervisors and workers that are relevant to emergency or crisis events. Supervisors are required to take every precaution reasonable in the circumstances for the protection of a worker and must also advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware. In turn, workers are under a duty to refrain from engaging in any prank, contest, feat of strength, unnecessary running or rough boisterous conduct. Though this duty is couched in language aimed at an industrial work setting, all of the duties in the OHSA are of equal application to all workplaces not specifically excluded by the Act.
Ontario Human Rights Code
It is the goal of human rights legislation to create an atmosphere of equal opportunity in which the dignity and worth of each individual is recognized. The Human Rights Code contains specific provisions that prohibit harassment based on grounds of discrimination which are enumerated in the Code. Harassment in any form is a direct affront to the dignity and worth of an individual, and can have extremely damaging consequences for employees and their work environment.
Under the Code, every person has a right to equal treatment with respect to services, goods and facilities, without discrimination on the basis of specified grounds, including disability. Disability is broadly defined under the Code and involves any degree of physical disability or infirmity that is caused by illness.
In the present circumstances, in the event that a school board employee or student is infected with the influenza virus, the Code sets out protections regarding an obligation to provide reasonable accommodation.
Accommodation must be provided to the point of undue hardship and must show respect for the dignity of the individual.
In risk management, foresight is critical. The focus is on prevention. Risk management and emergency preparedness involve planning, organizing and controlling activities that contain an element of risk to the participant. Risk management involves the following steps:
- Identify and assess exposures to injury;
- Identify various risk management strategies to address these exposures;
- Select and implement the appropriate strategy; and
- Monitor results and make improvements where necessary.
There are several steps that school boards and educators can take to meet the standard of care required in a possible influenza pandemic. It is important to plan ahead for a pandemic because of the serious impact it may have on a school system. Pandemics evolve quickly and require a co-ordinated and timely response. School boards should develop an influenza pandemic plan in collaboration with professionals from hospitals, government agencies, emergency services and community organizations. The purpose of the plan is to practice active surveillance to identify the earliest signs of an influenza pandemic, to minimize disruption to schools and to communicate with all of the stakeholders.
It is suggested that a school board’s pandemic influenza be organized in three phases: Preparedness, Response and Recovery.
Preparedness planning is essential to ensure that school boards, as well as other agencies, have in place early warning systems and procedures to identify an influenza pandemic early and take steps to contain its spread and impact. Preparedness planning could include:
- integrating health pandemic influenza planning with broader emergency response planning, which is designed to improve communication between the health and emergency systems, identify the emergency resources that will be available during a pandemic and establish clear roles and responsibilities;
- developing a communication plan to educate students, parents and school staff to ensure they have access to timely, accurate information; and
- informing students, parents and school staff of steps needed to protect themselves. Such steps include:
- get an influenza shot every year.
- wash your hands frequently.
- cover your nose and mouth when you cough or sneeze.
- if you are sick, don’t go to school or to work.
If an influenza pandemic occurs, it is likely to affect some school boards before others. The decision to declare a pandemic will trigger implementation of the plans, strategies and systems developed during the preparedness phase. The school board would implement, in consultation with relevant authorities, public health measures, such as possible closure, isolation or containment strategies. In addition, the school board would implement a communication strategy directed at all members of the school community to provide up-to-date information and bulletins from the Ontario Ministry of Health and Long-Term Care.
A recovery component of a school board influenza pandemic plan should be developed to address a range of postpandemic activities. Students should be informed of their academic status and the rescheduling of classes. Employees should be informed about their status regarding salary, sick leave and vacation as a result of a possible school closure. The school board should consider having a health professional of the school to answer questions from students and staff and provide information about the virus.
In a book called "Leading Change", John Kotter, a professor with the Harvard Business School, sets out a process to assist companies in accomplishing organizational change. Prof. Kotter says that the first stage in this change process is to establish a sense of urgency. He observed that creating a strong sense of urgency usually demands bold or even risky actions that we normally associate with good leadership. Prof. Kotter also advises that in order to create major changes in a workplace, a guiding coalition should be created, a vision and strategy developed to direct the change effort, and every vehicle possible should be used to communicate the new vision and strategy.
Creating a workplace committed to pandemic planning begins with the commitment of the school board itself. To a large extent, what is required is an overall will and allocation of resources to make pandemic response planning a priority. It is important for the school board’s management team and all staff to recognize the need for change and make a commitment to prepare appropriate strategies.
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