Avian Flu: Are You Ready? Vol. 18, No. 7
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.
Overview of the Literature
A barrage of recent news reports, seminars, and conferences have warned that an avian flu pandemic could have serious consequences for the U.S.[fn1] The Department of Health and Human Services ("DHHS")[fn2] 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.
Is There a Duty Under Employment Law to Prepare for an Avian Flu Pandemic?
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").[fn3] 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.
Common Preparation Measures
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.[fn4] Also, there is a significant body of literature about measures that companies are implementing.[fn5] The following are some of the more common measures reported in the literature.
Promoting Employee Health
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:
Promoting Business Continuity
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:
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.
Providing Continued Customer Service
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.
Employment Law Issues Related to Common Preparation Measures
Regardless of the measure, businesses must consider the employment law implications of the specific measures that they choose to implement, including the following:
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.
2. The most recent information from the DHHS about the avian flu can be found at http://www.pandemicflu.gov/.
3. The OSHA "Guidance for Protecting Workers Against Avian Flu" can be found at http://www.osha.gov/dsg/guidance/avian-flu.html.
6. For more information on this topic, see our Employment Law Commentary dated February 2006, "Modifying Employment Policies to Create a Security-Conscious Workforce"; July 2005, "Data Security: The Time Is Now"; and July 2004, "Your Employees: The Most Overlooked Component of Data Security."