Legal Alert: Is Your Business Ready for a Flu Pandemic?

Date   Jun 29, 2006
In light of the extensive news coverage given to the possibility of an Avian flu pandemic, many employers are concerned about their operations as well as potential legal obligations should such a pandemic occur.  This Alert provides guidance for developing a plan to help ensure the safety of the workplace should a pandemic occur.

In light of the extensive news coverage given to the possibility of an Avian flu pandemic, many employers are concerned about their operations as well as potential legal obligations should such a pandemic occur. This Alert provides guidance for developing a plan to help ensure the safety of the workplace should a pandemic occur. Having operational as well as communication plans may also prepare the organization in the event of other emergencies.

Because a pandemic will impact different types of businesses differently, and because different types and sizes of businesses will have different needs, not every point in this Alert will be relevant to every business. Ford & Harrison attorneys and F&H Solutions Group are ready to help you address your specific business needs and implement emergency preparedness and disaster response plans that are tailored to your needs, size and business operations.

What is Avian Flu? What is Pandemic Flu?

According to the Department of Health and Human Services, Avian flu is caused by influenza A viruses that occur naturally among wild birds. The H5N1 variant is deadly to domestic fowl and can be transmitted from birds to humans. There is no human immunity and no vaccine is available. It is feared that the virus can eventually mutate to transmit from human to human.

HHS defines pandemic flu as virulent human flu that causes a global outbreak, or pandemic, of serious illness. Because there is little natural immunity, the disease can spread easily from person to person. Currently, there is no pandemic flu. The H5N1 virus has raised concerns among health care professionals regarding a potential human pandemic because it is especially virulent, has been transmitted to humans and, like other influenza viruses, continues to evolve.

A pandemic flu would likely affect millions more people than the common or seasonal flu and all age groups could be at risk for infection, not just "at risk" groups. For example, adults under age 35 (a key segment of the U.S. workforce) were disproportionately affected during the 1918 pandemic. To emphasize how severe a potential pandemic could be, HHS has prepared a chart comparing the impact of the annual flu to a potential pandemic flu, which is available at

Steps Your Business Can Take to Prepare for a Pandemic

1. Form a pandemic team/disaster preparedness team.

Companies may want to form teams to develop plans and assign responsibility for dealing with a possible pandemic. Others may use teams already in place, such as emergency response teams or disaster preparedness teams. Consider who, from operations, human resources, and elsewhere should participate. Does your organization have access to an occupational medicine department, or, for organizations without the infrastructure for an internal medical department, a reliable occupational medicine consultant? Employers who currently have disaster preparedness and emergency response plans in place should start with these plans and evaluate whether they address all of the potential issues that may arise, or whether they need to be amended. The organization should try to learn how other organizations, worldwide, have addressed this issue as well as other health crises.

The team should then establish an emergency communications plan that identifies key contacts (with back ups), a chain of communications (including suppliers and customers), and processes for tracking and communicating business and employee status. Consider how employee communications will be maintained in the event of a pandemic (for example, a password protected web page, e-mail, telephone). Develop a protocol to warn employees during emergencies. Communicate with clients and partners either to warn them of interruptions in service/supply or reassure them of your ability to deliver despite a disaster.

The team should also schedule routine plan tests to allow your employees to become comfortable with the procedures and allow the team to assess vulnerabilities. Include all departments and use test results to make improvements to your plan. Look for weaknesses in your facility and particularly in the MIS department. Does your computer system have capacity to handle a large number of offsite logins at one time? If not, consider scheduling employees to login and work only during their designated time frame to avoid overloading the system.

2. Identify whether your company has an existing business continuity plan applicable to a pandemic.

If your company does not have a business continuity plan, you may want to consider creating one. If your company presently has a plan, consider whether the plan addresses long-term absenteeism rates. Can the pivotal business functions be maintained with minimal staff? What portion(s) of your business functions can be performed remotely?

3. Identify the company's essential functions and who performs them.

  • Determine what is critical to ensure that the business and/or particular facility can continue to operate. What are your essential technology needs? For example, what are the systems or system applications necessary to perform critical business functions? Who are your essential employees? What are your essential raw materials? Identify your critical partners or suppliers, knowing that they will likely be affected. Will you be disproportionately affected by partner relationships with organizations in locations at higher risk?
  • Develop backup plans to ensure the availability of employees and material essential to the continuation of operations. Cross-train your employees on essential jobs. Identify alternative sources of raw materials or supplies. Develop professional relationships with more than one company to use in case a primary contractor or supplier cannot meet your needs.

4. Identify the essential government functions that affect your business.

How can you ensure that the essential functions of your business continue to operate given limited supplies of: power, water, sanitation, transportation, and a sufficient food supply?

5. Identify the external activities that are critical to maintaining your business functions.

Does your business require travel to other areas affected by a pandemic? Have you developed contingencies to restrict travel to these areas? Does your business maintain inventory reserves? Does your business run on a "just in time" inventory? If possible, stockpile essential raw materials or supplies.

6. Identify your company policies and how they would be affected by a pandemic.

  • What is your company's policy on sick leave? To what extent are employees able to carry over or share/bank accrued sick leave? What are the implications of such a policy under wage payment and benefits laws?
  • What is your company policy on medical leave? Have you considered developing leave policies to be used in a pandemic situation that encourage employees to remain at home if they are sick or are caring for sick dependants? Such policies should be clearly worded to apply only in situations that implicate the use of your emergency management plan, to ensure they do not affect your day-to-day policies. Limit the contours of your plan to prevent it from working against you .
  • Do you have a telecommuting policy or at least an emergency telecommuting policy? Have you addressed any possible security concerns (through technology and through agreements creating binding legal obligations) if more employees are forced to work remotely?
  • Do your company policies address issues that may arise in a possible pandemic, such as: quarantine policies, social distancing policies, and increased sanitation policies to ensure a healthy work place?

7. Identify what health information is presented and given to employees.

Are employees sufficiently educated on basic sanitation at work? Do your employees have access to hand sanitizers and/or N95 Respirator masks? (N95 Respirator masks are the only approved masks to prevent the spread of the flu virus.) Educate your employees on the signs of infection. Develop a relationship with a medical professional who can provide information now at the planning and educating stage and later when questions arise during an emergency. This will allow your management team to make decisions based on objective medical standards rather than on subjective fears.

8. Develop plans to allow employees to work from home or remotely.

Does your company have the software or other equipment to enable employees to work from home? Does your company have computers for employee use at home? Do employees have home computers that they can use for work? Have you explained your employees' obligations and your expectations should employees need to work at home? Do you have policies in place to continue to ensure quality and productivity? Is it possible to expand online and self-service business options for your company?

9. Discuss pandemic policies with insurance carriers.

How are your insurance providers preparing for a possible pandemic? How will a pandemic affect your: health insurance, disability insurance, or life insurance coverage? Are your insurance providers communicating accessible health information on flu and other health issues on their websites or by other means?

10. Ensure effective employer/employee communication regarding a pandemic flu.

Communication with employees is essential, especially during the tumultuous atmosphere a pandemic will likely create. Before a pandemic arises, employers should consider their internal and external communications plans. For example, is it feasible to establish a hot line for employees to use in the event of a pandemic?

Discuss the threat and implications of a pandemic flu with your employees and be open about the steps your company is taking to prepare for a pandemic. Preparing ahead of time and articulating a plan may reduce anxiety and give employees a greater sense of control if an emergency does arise. Consider preparing and distributing information that will help employees prepare themselves for a potential pandemic, such as planning checklists for use at work and at home, a list of emergency health information, and emergency contact lists.

11. Develop a recovery plan.

Determine what will be necessary to rebuild your company and consider recovery time objectives. Determine when it will be possible to return to the office. How will you sanitize the workplace, assess damages, resume operations, and restore sales?

Basic Contamination Avoidance Steps

Ensure employees understand how the avian flu virus can be transmitted - through contact with poultry, and their droppings, feathers, intestines, and blood. Emphasize basic standards of good hygiene, such as:

1. Frequent hand washing

2. Use of hand sanitizing products

3. Covering the nose and mouth when coughing or sneezing

4. Staying home when ill

Other steps employers can take to reinforce good hygiene practices include:

1. Preparing or re-circulating hygiene policies and information regarding the symptoms and modes of transmission of influenza.

2. Ensuring sufficient supplies of sanitizing products (i.e. hand sanitizers, sanitizing wipes, soap in restrooms, etc.) are available for all employees. Consider making other items, such as disposable gloves and goggles, available where appropriate. Currently, masks are not considered effective in preventing the spread of Avian flu; however, N95 respirator masks are believed to be effective. Where appropriate, employers should ensure that such respirator masks are available.

3. Ensuring medical kits are adequately supplied and refreshed.

4. Ensuring facilities are properly ventilated and that ventilation systems are working properly throughout the workplace.

5. Keeping the workplace clean. This includes carpets, restrooms, eating areas, doorknobs, and switches, as well as each workstation. Educate your cleaning staff on how to reduce the outbreaks (i.e. use damp rather than dry dust rags to avoid spreading dust particles; use chorine based solutions).

Preparation Costs

How much preparation is necessary? What should you spend preparing for a pandemic that may never occur? This may vary in accordance with the employer's particular business and level of risk-tolerance.

Potential Legal Issues

Pandemic flu will force employers to confront a host of workplace legal issues, including:

1. FMLA: What rights and obligations do your employees have at each location under federal or parallel state leave laws? Who are your "key employees" and how will you address their inevitable absences? How do your policies address employees unable to return within the twelve weeks provided under law? Are you prepared to count and adapt to employees using intermittent leave?

2. OSHA and other workplace safety laws: Are you susceptible to claims under the Occupational Safety and Health Act (OSHA) stemming from exposure to harmful viruses at work? What rights do employees have to refuse to work based on reasonably based perceptions of health risks? What are the other rights of employees who collectively express concerns over safety and health risks?

3. ADA concerns: Although a temporary, albeit acute, condition like the flu is not likely to be considered a "disability" under the federal ADA, employees may have protections under state or local disability laws that define "disability" more generously. In addition, the ADA's privacy provisions grant protection to all employees with respect to employer medical tests and inquiries and the dissemination of employees' medical information. How will you address employees' questions or concerns over the health and possible contagiousness of a co-worker? In addition, persons with compromised immune systems may begin making reasonable accommodation requests to telecommute or other accommodations designed to protect them from exposure to illness. Are you prepared to address these requests? To what extent do you have a right to exclude employees from the workplace as a threat to safety and health? And, finally, are you prepared to address legal claims under ADA theories or related tort theories stemming from conduct by employees acting on unfounded fears toward other employees with disabilities or perceived as disabled? What training and education is being made available to combat these impulses and to reduce stigmatization of others?

4. NLRA concerns: If your employees are unionized, how restricted is your ability to make changes and impose new policies unilaterally under the collective bargaining agreement? When a large number of employees decided not to come to work, when can you hire replacements? Even employers with union-free workplaces should consider whether a refusal to work because of concerns over safety or health risks could be considered protected concerted activity under the National Labor Relations Act (NLRA).

5. Workers' compensation claims: Will you need to respond to workers' compensation claims by employees claiming to have become ill due to workplace exposure to the virus? How do your state's laws address this issue?

6. Negligence claims: Have you taken all precautions reasonably necessary to prevent infection? If an employer knows or should have known of an infection and fails to take appropriate action to prevent the spread of the flu, the employer may be liable for negligence.

7. Contract claims: Will you be able to defend against contract claims if you are unable to meet your contractual obligations to your customers?

8. Trade secret protection: If your are forced to change your traditional methods of performing work, have you taken measures to protect your trade secrets and confidential business information?

9. International operations: If you have overseas operations and employees, are you aware of your obligations that may arise from the fallout of an epidemic under the laws of those countries?

Additional Resources

Ford & Harrison attorneys and F&H Solutions Group consultants are available to assist you in preparing a plan that addresses your company's individual needs and concerns in the event of a pandemic. If you have any questions regarding the issues raised in this Alert or would like further information regarding emergency preparedness plans, please contact the Ford & Harrison attorney or F&H Solutions Group consultant with whom you usually work.