Avian Flu: Are You Ready?

While the likelihood of an avian flu pandemic is difficult to predict, an increasing number of businesses are devoting some effort to planning for a pandemic. According to a survey published by Watson Wyatt Worldwide in March 2006, fifteen percent of U.S.-based businesses have plans in place for operations during a pandemic, and that percentage likely will increase. An important element of pandemic preparation includes anticipating employment issues that may arise during a pandemic, and how to address them.

This Commentary (1) provides a brief overview of the growing literature on pandemic preparation, (2) discusses whether there is a legal duty under employment law to prepare for pandemics, (3) summarizes the literature regarding common preparation steps that businesses are considering, and (4) addresses employment law issues that may arise from these preparation steps.

A barrage of recent news reports, seminars, and conferences have warned that an avian flu pandemic could have serious consequences for the U.S.¹ The Department of Health and Human Services ("DHHS")² reports that the avian flu virus, which occurs naturally in wild birds, can be transmitted from birds to humans, but to date, cannot be easily transmitted from human to human. Humans have no natural immunity to the avian flu virus, and at this time, there is no vaccine. According to the World Health Organization’s data, the current mortality rate is greater than 57 percent. All age groups are at risk. However, otherwise fit adults are at a relatively greater risk, in contrast with many diseases that tend to affect primarily the very young, the elderly, or the infirm.

According to the DHHS, the U.S. Chamber of Commerce, and the World Health Organization, the virus could mutate into a strain that could infect humans and spread easily from one person to another, thus starting a pandemic that could (1) come and go in waves, with each wave lasting for six to eight weeks; (2) lead to high rates of illness and worker absenteeism for three to four months; and (3) cause 2 million to 7.4 million deaths worldwide.

In general, employers in the U.S. have a duty under the federal Occupational Safety and Health Act of 1970 ("OSH Act") to provide a safe workplace. Many states impose similar requirements. The "general duty" clause of the OSH Act requires an employer to

furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

It is unclear whether the avian flu is a "recognized hazard" that would trigger the general duty clause for all employers in all industries. The federal Occupational Safety & Health Administration ("OSHA") has issued guidance for protecting workers against the avian flu ("Guidance").³ The Guidance provides recommendations only for farm workers and animal handlers, laboratory workers, medical personnel, food handlers, airline flight crews, and travelers. According to OSHA, the Guidance’s "primary focus is good hygiene, including gloves and hand washing, as well as respiratory protection for those who work with infected animals or individuals." At this time, OSHA has not issued any specific guidance requiring all employers in all industries to prepare for a pandemic.

The DHHS and the Center for Disease Control and Prevention have published a checklist for large businesses to assist with developing measures to respond to a pandemic.⁴ Also, there is a significant body of literature about measures that companies are implementing.⁵ The following are some of the more common measures reported in the literature.

Public health officials project that during an avian flu pandemic, 40 percent of workers will be absent from work for three to four months because they are (1) ill; (2) caring for ill family members or children at home due to school closings; (3) part of a quarantine; or (4) avoiding social settings for fear of contracting the virus. To help prevent widespread and prolonged employee absenteeism due to illness, the literature suggests that businesses consider the following:

• employee hygiene programs (i.e., teaching employees to wash their hands and to cover their mouths when coughing or sneezing; providing kits with masks and disinfectant; ensuring more frequent cleaning of bathrooms and sterilization of doorknobs; locating hand-sanitization dispensers in high-traffic areas; and installing automatic doors, faucets, and paper towel dispensers);

• "social distancing" efforts (i.e., reducing building population, possibly by imposing flex hours or having non-critical employees stay home so that essential workers can work safely and spread out on floors; requiring employees to stay three feet away from each other at all times; prohibiting handshaking; discouraging elevator use entirely or placing head-count restrictions on elevator use because of the potential ease of transmitting the virus within confined spaces; having employees meet in larger meeting rooms to allow for more space between individuals; and having employees use e-mail and BlackBerrys for conversations); and

• monitoring of certain medical information (i.e., encouraging and tracking annual influenza vaccinations for employees; evaluating employee access to and availability of healthcare, mental health and social services; and improving the services as needed).

The literature suggests that businesses are creating plans for (1) distribution of information to employees regarding the status of the pandemic and the business’s operations; (2) assurance that critical functions can be completed; (3) establishment of alternative work arrangements; and (4) provision of adequate leave policies for employees.

Keeping employees informed is essential to avoiding panic. Proposed methods of distribution of information to employees include designation of a pandemic coordinator who serves as a resource for employees and who is in charge of the pandemic preparedness plan and distribution via a business’s toll-free 800 number or web-based check-in process.

In regard to operations, businesses are making sure that critical functions can be completed by:

• identifying essential employees now;

• cross-training employees so that more than one employee is qualified to do the job of each essential employee; and

• establishing alternative work arrangements.

Alternative work arrangements include providing essential employees with telecommuting capability (including laptops, broadband access, and videoconferencing capabilities), and voluntary quarantine facilities in buildings that the business has entirely set aside as a clean facility. Businesses establishing voluntary quarantine facilities would allow workers to stay in the clean facility during the outbreak.

Last, to provide adequate and appropriate coverage, businesses are reviewing and updating key policies such as those regarding sick leave; caregiver’s leave; bereavement leave; employee health, life, disability, salary continuance, and travel insurance; business travel; and return of expatriates. Some companies are reviewing and eliminating proposed business trips to potential avian flu hot spots.

During an avian flu pandemic, demand for certain services and products probably will decrease while demand for others probably will continue at the same level or increase exponentially. The literature advises each business to identify the likely level of demand for its products and services in the event of an avian flu pandemic, and to identify how those services and products will be transferred to its customer base. Some businesses are taking measures to identify their key customers, to notify those customers and other business partners of their avian flu preparedness plans, and to line up alternatives to fill the customers’ orders in the event that the business cannot.

Regardless of the measure, businesses must consider the employment law implications of the specific measures that they choose to implement, including the following:

• whether the business is providing a sufficiently safe work environment, given the nature of its industry, that would satisfy legal obligations under federal and state occupational safety and health laws;

• whether the business needs to make changes to accommodate employees with disabilities to comply with the Americans with Disabilities Act and applicable state laws if it implements alternative work arrangements, or restricts employee usage of confined spaces such as elevators;

• whether the business has properly trained telecommuting employees to ensure protection of trade secrets or personally identifiable information (i.e., determining the appropriate level of out-of-office access to confidential information including employee contact information, establishing privacy and proprietary information policies, and training employees on such policies);⁶

• whether sufficient measures are in place to protect the privacy of employee health information likely to be generated and collected during a pandemic;

• whether the pandemic flu plans are adequately communicated to all employees to avoid misinterpretations of actions by employees that could lead to legal claims (i.e., the possibility that employees misperceive hygiene programs, "social distancing," cross-training, or customer support efforts as forms of discrimination or retaliation); and

• whether business travelers and expatriates returning from hot spots may be required to take paid leave, unpaid leave, family and medical leave, or leave under the Americans with Disabilities Act, before returning to the office, to guarantee that they are not sick, and whether such employees are required to be paid during such leaves under federal and state wage and hour laws.

As the foregoing illustrates, the wide range of business issues that arise in pandemic planning generate an equally wide range of employment issues. Some forethought devoted to these employment issues today may become invaluable in the crisis atmosphere likely to predominate if a pandemic occurs.

Footnotes

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved