Pandemic Flu Planning Presents Legal And Logistical Challenges For Employers

Experts from around the globe predict that a pandemic flu outbreak could cause U.S. businesses to suffer 40% absence rates over a period of six to eight weeks, resulting in a national loss of productivity in the range of 5%. Although transmissions of the H5N1 avian influenza virus from person to person remain extremely rare – preventing avian flu from being considered a pandemic – the World Health Organization reports that there have been 256 cases of avian flu as of October 16, 2006. Over the course of the past year, federal and state governments have been developing preparedness plans and outreach initiatives. U.S. businesses, particularly multi-national employers, those businesses involved in critical infrastructure industries (e.g., transportation, energy, and health care), and those with international suppliers, should be particularly attentive to these planning steps and developments relating to this issue. Also, as many businesses observed during the recent concerns over SARS, during periods when illnesses are being reported, employees may be fearful of international travel or reluctant to come into contact with individuals who recently returned from potentially affected regions.

For the moment, it does not appear that a pandemic flu event will occur in the coming weeks or months. Nevertheless, because many authorities believe that such an outbreak may be inevitable, employers would be wise to begin developing at least a skeleton plan for responding to an emergency of this nature. For most businesses, the critical issues to address in preparing for a flu pandemic are how to maintain an adequate workforce and workforce productivity – perhaps simply by allaying common fears or potential misconceptions about potential risks. Some practical issues to consider for planning purposes include:

• Keeping abreast of which regions globally are reporting significant rates of illness and how that may affect travel requirements;
• Assessing potential vulnerabilities to a pandemic outbreak, including risks to workers and disruptions that may be caused by suppliers;
• Developing a system for monitoring information on pandemic outbreaks and disseminating appropriate information to employees;
• Cross-training employees, identifying potential replacements, and recognizing cultural issues and other considerations stemming from these measures;
• How medical privacy laws, e.g., HIPAA, affect workplace disclosures of illness;
• Responding to employees who may be fearful of reporting to work, subject to quarantine, or assisting a family member, while having exceeded permissible leave periods;
• Developing telecommuting policies, critical communications systems, and other alternative work arrangements that preserve productivity while protecting the workforce;
• Maintaining appropriate records in the event of an infection;
• Training employees on common symptoms and how to respond, as well as steps to prevent potential transmission, such as hygiene-related policies; and

• Addressing the obligation to maintain a safe workplace while respecting federal or state privacy or anti-discrimination laws.

Over the course of the past year, a number of U.S. government agencies, including the Department of Health and Human Services ("HHS"), Centers for Disease Control ("CDC"), Department of Homeland Security ("DHS"), Department of Agriculture, and the Occupational Safety and Health Administration ("OSHA") have been developing guidelines for employers to follow in the event of a pandemic. Similarly, employers have been strongly encouraged to develop emergency response and preparedness plans that recognize the potential for a pandemic flu outbreak and prepare accordingly. While doing so, employers should address the following legal considerations:

• Americans With Disabilities Act ("ADA") and State Law Claims: Although it appears unlikely that a flu illness would be considered a "disability," employer medical certification policies may nevertheless create potential ADA liability. Under the ADA, disability related inquiries or medical examinations are permissible when performed in a non-discriminatory manner and are job-related and consistent with a business necessity. Accordingly, employers should carefully consider medical certification policies or identifying employees who should be sent home. Following guidance from HHS/CDC or OSHA should reduce the risk of potential liability.
• OSHA Claims: Under the Occupational Health and Safety Act of 1970, employers must provide a workplace free from "recognized hazards" that cause or are likely to cause death or serious physical harm. To reduce the risk of such claims, employers should implement good hygiene policies as appropriate, consider offering flu vaccines to employees, review CDC advisories, and take other reasonable precautions to prevent the spread of illness. Employers also should be sensitive to potential "whistle-blower" or retaliation claims from employees who raise concerns about contracting a flu virus or the company’s response to a flu outbreak. On the other hand, despite concerns that employees may raise, employers must respect employee privacy in order to avoid potential claims arising from impermissible disclosures of information about other employees.
• Wage and Hour Laws: Employers developing emergency or flu-related leave policies should consider state and federal laws covering permissible wage deductions and how to handle payment of employees required to stay at home or whose absences are caused by business closings. In particular, employers should be mindful of how employees categorized as "exempt" from overtime are treated under such policies. Employers who provide paid leave to employees to encourage voluntary compliance with their policies should do so in a non-discriminatory manner. Employers should confirm whether communicable disease or sick leave policies are currently in effect and whether such policies adequately address issues presented by a potential flu pandemic.
• Family and Medical Leave Requirements: Employees or employees with family members affected by a flu outbreak may be eligible for leave under the Family and Medical Leave Act of 1993 ("FMLA") or state law equivalents. Employers should recognize that the expected duration of a pandemic is six to eight weeks. For that reason, employers should consider that some employees may exceed permitted leave periods. Determinations of whether employees are covered by FLMA policies – especially where it is not clear that the employee or family member is ill – should be treated on a case-by-case basis, with an eye towards avoiding potential discrimination claims. On the other hand, because the CDC has advised that employees should be encouraged to be well-rested, employers should consider whether applicable policies discourage employees from taking leave for minor illnesses.
• Worker Adjustment and Retraining Notification Act ("WARN") Obligations: Employers who may be forced to temporarily close operations as a result of a pandemic outbreak may trigger notice requirements under WARN or state equivalents that should be reviewed. Generally, WARN requires 60-days notice to employees or employee representatives and governmental agencies prior to "plant closings" or "mass layoffs" of employees. However, notice requirements may be limited due to "unforeseen business circumstances" or "natural disasters."
• Medical Privacy Requirements: Employee medical certifications or illness records may be protected by the FMLA, the ADA and HIPAA, which may create confidentiality obligations for employers. Employers should also be careful to limit medical inquiries to information necessary to determine an employee’s ability to perform essential job functions or whether an employee presents a potential risk to others. In addition, employers will need to comply with applicable requirements under HIPAA when obtaining medical information about an employee.
• Union Issues: In unionized work settings, modifications of sick leave, attendance, severance pay and related policies may trigger notice and bargaining rights under the National Labor Relations Act ("NLRA"). Employers should review collective agreements to determine the extent of their flexibility to respond to potential crises. Additionally, employers – even in otherwise non-union settings – should recognize that employees who refuse to work based on expressed health or workplace safety concerns may attempt to claim protection under the NLRA for having engaged in "protected concerted activity."
• Workers’ Compensation and Benefit Policies: Employers should be mindful of the fact that state workers’ compensation laws may provide benefits to employees who contract an illness while in the course of performing their duties. For that reason, information regarding how an employee became ill may be a significant question. In addition, employers should confirm coverage issues under employee medical benefit policies, as well as short-term disability policies, in order to evaluate coverage levels and in anticipation of employee questions. Employers should also be mindful that employees may need to receive emergency loans and withdrawals from 401(k) or other retirement plans, and should consider how to ensure availability of funds from these plans. Human resource departments should consider drafting communications on available benefits and how to access them.
• Non-U.S. Legal Requirements: Employers with employees working outside of the U.S. should review the availability of appropriate coverage of such employees, and consider whether adequate medical care is available. In some cases, employers may wish to stockpile flu vaccines for employees who face greater risks and to confirm the availability and cost of emergency evacuations. Employers with operations in several countries should ensure that their flu-response policies do not conflict with local laws in applicable jurisdictions. Many jurisdictions have implemented data privacy requirements that could be implicated when communicating information about affected employees globally; on the other hand, some countries may create mandatory reporting requirements in an effort to contain a potential flu outbreak. Moreover, employers that may be considering modifications of leave or similar policies should ensure that works councils or employee representatives are consulted, as required. Employers likely will encounter resistance, both legal and cultural, to a U.S. centric "one size fits all" policy. For that reason, employers should avoid the risk of being required to create or implement such policies while in the midst of a crisis.

Obviously, from a practical perspective, emergency preparedness and response planning is best performed before the crisis begins. Employers who are charged with a duty under OSHA to provide a safe working environment should consider whether they have taken the necessary steps to meet this obligation. Employers reviewing or creating response plans should look to the tools being made available by state or federal agencies, such as the CDC, for this purpose. By following agency recommendations and guidelines, employers may be able to demonstrate the business justification for policies and practices that become subject to later challenge. In addition, employers may need to develop a sophisticated understanding of available options for their workforce and the legal requirements underpinning these options.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.