The Elements of a Pandemic Preparedness Program

Note: The following information was prepared by Mark Mansour, Bryan Cave LLP. The National Restaurant Association provides the below for information only; this information is not intended as legal advice. We advise the reader to contact his or her legal counsel before taking any substantive action referenced in the article.

While even the most comprehensive pandemic plan cannot protect employees and customers from illness or protect a business from legal issues, good planning can help limit your liability. The best planning begins well before a pandemic, but even businesses that get a late start can still develop a durable plan to help protect employees, customers and the business. A solid plan is made up of a number of individual actions that can be rapidly deployed using the full resources of a business.

Before a Pandemic

• Develop a specific pandemic plan, including wall charts, checklists, guidelines and instructions for employees
• Create an emergency supplies checklist, as well as a business continuity checklist
• Develop procedures for reporting of illnesses and for travel
• Develop response policies, especially guidelines regarding when employees should leave work, and when previously ill employees may return to the workplace.
• Disseminate information on government preparedness plans
• Develop policies for payment of wages and benefits, including death benefits
• Draft appropriate agreements for first responders and essential staff, including necessary training
• Develop shutdown and follow-up communications plan for critical stage.

During a Pandemic

• Develop procedures for adapting or changing the plan to meet evolving pandemic conditions
• Implement a system for communicating with key personnel, employees, customers and government and health officials

After a Pandemic

• Develop procedures for assessing the company's situation on all critical levels
• Communicate with employees and customers
• Counseling programs for grieving or affected employees
• Adapt procedures and policies as needed
• Address claims

General Advice

• Keep up with the government’s guidance on employer compliance issues and public health. The Departments of Homeland Security and Health and Human Services are leading the charge in responding to the flu pandemic. Multiple agencies within and outside the DHS and HHS are fully engaged as well, including the National Institutes of Health, Centers for Disease Control, Food and Drug Administration, Occupational Safety and Health Administration, and other agencies. The national strategy published by the Administration urges industry to endeavor to maintain continuity of operations; OSHA, for example, has issued guidance on preparation of workplaces for influenza, which is likely to create legal obligations for employers to develop programs for the protection of employees. Flu.gov offers a one-stop shop for much of the government’s information and advice.
• Communication is critical. Your company’s Web site or Intranet should be regularly updated. Are you prepared for alternative means of communication — such as teleconferencing — in the event of widescale absences? Employees should be reminded to wash hands and be extremely careful when coughing or sneezing. Above all, companies should answer employee concerns with good and current information.
• Make sure you’re up to speed on job-leave laws. Human resources policies may need to be modified in light of the potential length and severity of a pandemic. Disability and leave policies may need to be amended to encourage contagious individuals to remain at home and to ensure compliance with statutory and regulatory requirements in the context of a pandemic. The Family and Medical Leave Act — which generally entitles employees to up to 12 weeks a year of unpaid, job-protected time off for their own or a family member’s serious illness — will be a major focus at this time. Companies should expect employees to request time off because either they or family members are ill. Since the H1N1 virus will almost certainly qualify as a serious health condition under the FMLA and other applicable laws, employers should carefully assess how they will manage large numbers of leave requests and the impact of these on business continuity.
• Watch privacy considerations. Employers are strongly encouraged not to seek medical information from employees or ask employees who have who have been traveling in affected areas of the world to be tested, without seeking counsel. These requests may violate the Americans with Disabilities Act or other laws. Such activities may also violate the Health Insurance Portability and Accountability Act (HIPAA) and other privacy laws are the appropriate domain of public health authorities. The below information goes into further detail about workplace privacy and employee illnesses.
• Take a look at other business documents and policies. Employee and labor union agreements may need to be amended to permit, among other things, cross-training and succession planning. Contracts with suppliers and providers of business services should be reviewed to ensure the company has adequately taken into account the potential financial impact of failure to perform. Insurance programs must be reviewed to determine the adequacy of coverage for health and death benefits, as well as the availability of coverage for business losses.

H1N1 FLU CONCERNS: WORKPLACE PRIVACY AND EMPLOYEE ILLNESSES

In the wake of the H1N1 flu outbreak (initially named swine flu), many employers will be asked to balance employee privacy rights with public and company health concerns.

For example, an employee who calls in sick with the flu (or with a family member who has the flu) may trigger rumors that the sick employee must have contracted the H1N1 flu. The supervisor wants to tell everyone in the company – especially those who work directly with the sick employee – about what is going on. How do you balance the privacy concerns of the sick employee and their family against the health interests of co-workers?

The legal analysis related to this issue involves the interplay of the Americans with Disabilities Act (ADA); the Family and Medical Leave Act (FMLA); the Health Insurance Portability and Accountability Act of 1996 (HIPAA); and state and local laws. Common sense and good HR skills will also help.

Please consider the following guidelines for balancing the privacy interests of potentially infected workers and the health interests of co-workers and the public.

• Investigate and interview the possibly infected employee: Learn the facts. Do not rely on rumors. If the facts indicate that an employee might be infected, designate a manager with the appropriate level of responsibility to get more information directly from the employee.
• Request written consent to disclose: Ask the employee for written permission to inform co-workers that they may have been exposed. If the employee refuses to consent, tell the employee that the company may have no choice but to share information about the infection with others, but will do so only to the extent permitted or required by law.
• Consult counsel on how to handle a non-responsive or uncooperative employee: If the employee is non-responsive or refuses to disclose information, consult legal counsel regarding whether the employee can be required to provide health information and how it should be provided before taking any adverse action against the employee. If the employee already has been sent home, promptly involve counsel to minimize or resolve any possible liability risks.
• Provide written notice of disclosure: If it becomes necessary to disclose certain information about the employee’s infection, provide written notice to the employee that: (a) the employer may need to disclose limited information about the employee’s health condition to those with a need to know, such as government health officials and health care providers of co-workers, to take precautions against the spread of the infection and to facilitate any needed treatment of others; and (b) the employer appropriately will limit disclosure and then will disclose only the minimum information necessary.
• Avoid using identifiable information: When disclosing information about the potentially infectious employee, avoid specifics that may provide reasonably identifiable information about an individual or identification by name except when necessary to protect the health of co-workers who might have been infected or as required by law.
• Instruct supervisors on confidentiality and retaliation risks: Instruct supervisors about the need to maintain the confidentiality of employee health information and provide guidance on how to respond to questions from other employees and supervisors so as to avoid undue panic and further rumors. Supervisors should be reminded of the need to avoid any retaliation against the possibly infected employee. Educate supervisors on the spread of infections, types of treatment, and the company’s planned preventative steps.
• Provide time off: Remind the employee and co-workers that they have available time off to seek medical attention. Ask for releases to return to work from the employee’s physician. On a case-by-case basis, if potentially impacted employees do not have paid time off available, offer limited unpaid time off.

There is no one answer to the many complicated privacy and health issues that this type of situation in the workplace can raise. As with most employment issues, prompt and sensitive investigation, documentation, and consultation with your counsel are your best protections.

For further information about the H1N1 Flu outbreak, consult the Centers for Disease Control and Prevention (CDC) at www.cdc.gov or 1-800-CDC-INFO.

Business Response to the H1N1 Flu: Steps You Can Take

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