A serious concern has arisen that over the next 12 to 24 months Canadians could suffer a flu pandemic that could cause widespread social and economic disruption, including high absenteeism in the workplace.
The World Health Organization ("WHO") reports that health experts have been monitoring a new and extremely severe influenza virus – the H5N1 strain – for nine years. The H5N1 strain first infected humans in Hong Kong in 1997, causing 18 cases, including six deaths. Since mid-2003, this virus caused the largest and most severe outbreaks in poultry on record. In December 2003, infections in people exposed to sick birds were identified.
The H5N1 strain of the flu virus has spread to Europe and Africa and resurfaced in Asia, with Myanmar and possibly Afghanistan also reporting infections.
WHO has confirmed that 176 people have been infected with the bird flu around the world since 2003, and 98 have died. Direct contact with infected poultry, or surfaces or objects contaminated by their faeces is considered the main route of human infection. The H5N1 virus has been around since 1997 without developing into a human pandemic virus. Medical experts indicate that they cannot predict whether the H5N1 virus will mutate and cause the next human pandemic. Should the H5N1 strain evolve to a form as contagious as normal influenza, a pandemic could develop.
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.
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.
Indeed, the return of the bird migration season has touched off new worries over how a serious outbreak could interrupt business in many parts of the world simultaneously, perhaps for months on end.
A recent report by the International Monetary Fund ("IMF") indicated that the biggest impact on economic and financial activity will come from high absenteeism, as people stay at home to deal with infections or to avoid them. The IMF also warned that there may be disruptions to global trade and transportation as countries impose restrictions on exports to control the spread of the virus.
Yet despite this threat, many companies have only rudimentary contingency plans in place. In a survey of more than 100 executives in the United States by Deloitte & Touche, released in January, 2006, two-thirds said their companies had not yet prepared adequately for avian flu, and most had no one specifically in charge of such a plan. The report concluded: "Business is not prepared for even a moderate avian flu epidemic."1
The lack of corporate preparedness has "enormous implications", the Deloitte report said. "A pandemic flu outbreak in any part of the world would potentially cripple supply chains, dramatically reduce labour pools", the report stated. "In a world where the global supply chain and real-time inventories determine most everything we do, down to the food available for purchase in our grocery stores, one begins to understand the importance of advanced planning."
From a legal perspective, a number of questions arise: What is a company’s duty of care in the face of a possible human pandemic? What steps can businesses take to prepare for a avian flu pandemic? What actions should be taken from a labour and employment law perspective to protect the health and safety of the workforce and maintain business continuity?
Duty of Care
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 an employee, management personnel, or by a third party who has been harmed. The victim may allege that the company 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 company must be able to demonstrate that, under the circumstances of a possible pandemic, it had a reasonable awareness of its work environment and through preparedness planning and response strategies, it had taken 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 employee’s duties, the Ontario 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.
Prior to a possible pandemic, a company’s joint occupational health and safety committee should determine its role and responsibility. In particular, it should work with management in the preparation of a detailed pandemic plan. It should also provide regular written updates to the employees and prepare proactive communications to staff, in collaboration with public health authorities and emergency services.
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 Code contains specific provisions that prohibit harassment based on enumerated grounds. 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 company employee 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.
Pandemics evolve quickly and require a co-ordinated and timely response. Preparedness planning is essential to ensure that businesses and other organizations have in place early warning systems and procedures to identify an influenza pandemic early and take steps to contain its spread and impact. Businesses should develop an influenza pandemic plan in collaboration with professionals from hospitals, government agencies, emergency services and community organizations.
While one hopes that the likelihood of having to implement such a plan is minimal; being caught without a plan may have devastating consequences. Ensuring that everyone in the organization is aware of the plan, and resolving operational and legal issues in advance, is a minimum standard for any responsible business.
Preparedness planning should include:
- integrating pandemic influenza planning with broader emergency response planning, which is designed to improve communication between the health and emergency systems and identifying emergency resources that will be available during a pandemic;
- identifying the potential flu transmission links in the particular business and the steps that should be taken to ensure appropriate social distancing should a pandemic occur;
- identifying who in the organization will be "in charge" and the appropriate hierarchy and set of responsibilities for the individuals involved;
- developing redeployment plans for staff members who, because of age or other vulnerability factors, should be re-assigned with modified job duties;
- proactively discussing issues with union representatives regarding possible obstacles in the collective agreement to management’s plan, or whether the collective agreement should be revised to reflect the plan;
- reviewing when management may decide to close down or severely restrict business operations and, if so, assessing the criteria for doing so;
- identifying particular safety measures that should be implemented, such as strict protocols for hand washing, obligatory mask-fitting or inoculation of a flu virus;
- identifying insurance coverage that may be in place to deal with possible interruption errors or potential liability errors arising out of the pandemic; and
- developing a communication plan to educate employees, management and their respective families to ensure they have access to timely, accurate information. Companies should also inform its staff of steps needed to protect themselves.
Such steps include:
- get an influenza shot every year;
- frequent hand-washing;
- avoid public places;
- reduce non-essential travel;
- cough into a disposable tissue; and
- stay at home if feeling sick.
If an influenza pandemic occurs, it is likely to affect some businesses before others. The decision to declare a pandemic will trigger implementation of plans, strategies and systems developed during the preparedness phase. The company would implement, in consultation with relevant authorities, public health measures, such as possible closing, isolation or containment strategies.
In this regard, it is critical for businesses to identify its core functions and focus on what activities should be continued and what activities should be scaled back.
Businesses should assess their technological infrastructures to enhance the ability of employees to work from home when they are contagious. For example, to prevent the spread of the virus, management may decide to cancel face-to-face meetings in favour of teleconferencing.
Companies may also be required to retool and train, including cross-train, employees to handle essential core functions to cover employees who may be out sick. In addition, companies should enter into discussions with part-time and casual staff and retirees about the need for a commitment to undertake certain duties or assignments. Furthermore, management should discuss with staff the possibility of deferring holidays to ensure that essential work is completed.
Management should also anticipate a range of human resource issues, such as requests for stress leave, vacation entitlement, work refusals, non-compliance with work assignments, and employee resignations.
A recovery component of a company’s influenza pandemic plan should be developed to address a range of postpandemic activities. Employees should be informed about revised assignments and work schedules. Management should inform their staff about their employment status regarding salary, sick leave, vacation and disability coverage. The company should consider providing access to a health professional at the workplace to address questions from staff and provide information about the virus.
In a book called "Leading Change",2 John Kotter, a professor with the Harvard Business School, sets out a process to assist companies in accomplishing organizational change. Professor 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. Professor 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 a company’s senior management. To a large extent, what is required is an overall will and allocation of resources to make the development of a pandemic plan a priority. It is important for the company’s management team and all staff to recognize the need for emergency response planning and strategic thinking and make a commitment to prepare appropriate strategies.
1E. Rosenthal and K. Bradsher, "Is Business Ready for a Flu Pandemic", The New York Times (March 16, 2006), p.1.
2 J.P. Kotter, Leading Change (Boston: Harvard Business School Press, 1996).
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