Preparing The Workplace For A Pandemic
Lawyers should be familiar with federal and state regulations as well as legal
issues for employer clients
By Donald W. Benson and James E. Hart
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Benson |
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Hart |
How should California employers prepare their workplaces for possible pandemics
of avian influenza, Severe Acute Respiratory Syndrome (SARS) or illness spread
by bioterrorism? Is the risk of a pandemic illness significant enough to merit
the devotion of time and resources necessary to secure the continuity of business
operations? What is an employer’s role in promoting quarantine effectiveness,
social distancing or preventative hygiene? This article examines the nature
and threat of the pandemic occurrence of a disease, pertinent federal and California
state regulations and guidelines and some of the major legal and logistical
issues on which counsel should advise business clients for a possible pandemic.
What is a pandemic?
The Centers for Disease Control (CDC) has set forth three conditions that
must exist in order for a global outbreak of a disease to occur: (1) the emergence
of a new type of virus to which humans have little or no immunity; (2) the
capability of this new virus to infect and cause illness in humans; and (3)
the capability of the virus to spread easily and without interruption among
humans. A pandemic results when these three factors converge with regard to
a disease.
We have experienced three influenza pandemics in the previous century: “Spanish
influenza” in 1918, “Asian influenza” in 1957 and “Hong
Kong influenza” in 1968. The 1918 pandemic killed an estimated 40 to
50 million people worldwide. Although the 1918 “Spanish influenza” was
exceptionally deadly, the two subsequent pandemics also caused significant
human deaths, including an estimated 2 million deaths in 1957 and 1 million
deaths in 1968.
Currently, public health officials are alarmed over the pandemic potential
of the current strain of avian influenza, H5N1. Although the vast majority
of avian influenza viruses do not infect humans, on rare occasions these bird
viruses can infect other species, including pigs and humans. H5N1 has spread
by bird migration and commerce into the domestic and wild bird populations
of 50 countries in Asia, parts of Europe, the Middle East and Africa. Transmission
from birds to humans has been relatively rare, but 366 confirmed cases have
resulted in 232 deaths in a wide geographic area, including Azerbaijan, Cambodia,
China, Djibouti, Egypt, Indonesia, Iraq, Thailand, Turkey and Vietnam.
An influenza pandemic occurs when a new virus subtype emerges that has not
previously circulated in humans and “starts spreading as easily as normal
influenza — by coughing and sneezing.” Public health experts are
particularly concerned that H5N1 might ultimately mutate into a strain that
is contagious among humans because it is an Influenza A subtype and has genetic
similarities to influenza strains that have spread among humans. With such
a genetic adaptation, H5N1 would no longer be a bird virus, but a new human
influenza virus to which the human immune system would have no preexisting
immunity. This lack of immune defense makes it likely that people who contract
such a type of influenza will experience more serious symptoms than those caused
by normal influenza to which humans have already been exposed.
How likely is it?
The World Health Organization (WHO) bases its current pandemic planning on
three assumptions: a pandemic would spread to all continents in less than three
months; significant portions of the world’s population would require
medical care; and medical supplies will be inadequate in all countries due
to limited supplies of vaccines and antiviral drugs. Based on the comparatively
mild 1957 influenza pandemic, the WHO projects approximately 2 million to 7.4
million deaths worldwide. Past pandemics generally have occurred in two or
three waves, so that not all countries experienced the same level of disruption
at the same time. Thus, employers may face various stages of disruption caused
by a pandemic, including: overseas occurrence affecting travel and foreign
suppliers and customers; high absenteeism at home, but with the ability to
maintain near-normal operations; and near total absenteeism at home, making
it difficult to keep operations open, along with possible disruption of utilities
and quarantines of the facility area.
Pertinent federal regulations
Federal regulations and guidelines issued by the Occupational Safety and Health
Administration (OSHA), the United States Department of Agriculture and the
CDC may play a key role in shaping how businesses in the United States respond
to a pandemic. A pandemic scenario would likely involve both OSHA’s blood
borne pathogens and its respiratory protection standards. [29 C.F.R. §1910.134
(a)-(o)] The “general duty” clause of the Occupational Safety
and Health Act [29 U.S.C. §654(a)] and similar California regulations [California
Health & Safety Code. §120290] require an employer to provide a safe and
healthy work environment for employees, thus giving OSHA broad statutory authority
for issuing new regulations. OSHA has already issued new guidelines for various
types of persons who may be affected by an avian influenza pandemic, such as
those who clean poultry areas affected by the virus, airline personnel and
citizens living abroad.
In February 2007, the CDC issued new community standards for mitigating an
avian flu pandemic that recommend social-distancing strategies to reduce contact
between people, including closing schools and daycare centers for up to 12
weeks, canceling public gatherings, planning for liberal work-leave policies
and telecommuting strategies, and the voluntary isolation of cases and household
quarantines.
Pertinent state regulations
The state of California and the county of Los Angeles are each working with
the U.S. Department of Health and Human Services (HHS) to promulgate regulations
and guidelines to manage pandemic conditions within the state and city. During
a March 30, 2006, summit, the HHS, other federal agencies, and California and
Los Angeles County public health and emergency management and response leaders
met to develop an integrated influenza pandemic strategy. HHS Secretary Mike
Leavitt, Gov. Arnold Schwarzenegger and Los Angeles County Supervisor Zev Yaroslavsky
signed planning resolutions detailing each party’s shared and independent
responsibilities for pandemic planning.
Pursuant to these planning resolutions, in September 2006, California issued
a Pandemic Influenza Preparedness and Response Plan to address disease surveillance,
infection control and the allocation of scarce resources. For planning
purposes, the California plan adopted an assumption that the pandemic could
last from 18 months to several years.
Preparing a response plan
Employers should ensure that their pandemic response plan covers the basic
aspects of the emergency plan, including:
- Designating the responsible pandemic contingency planner and emergency contact
person;
- Communicating the employer’s policies and the required steps for requesting
leave and benefits to promote both maintaining operations and not losing the
workforce once the pandemic ends;
- Developing a protocol and thresholds for reduced operations staged at set
absenteeism levels;
- Developing monitoring systems to keep track of employees who may want to
return to work too quickly and for those who may be ready to return without
posing a risk to others; and
- Developing social-distancing strategies appropriate to the workplace to
limit transmission risks, including cough etiquette, sanitation practices,
limiting group meetings and limiting employee assembly opportunities at time
clocks and cafeterias, etc.
Communicable disease policy
Attorneys should discuss with business clients whether to adopt a communicable
disease policy requesting that employees notify the employer of their possible
exposure to certain communicable diseases, so that the employer can reasonably
respond proactively with education and workplace preventative steps such as
increased disinfection or issuing personal protective equipment where appropriate.
Travel and quarantine policies
Employer travel policies should state that foreign travel should be limited
in accordance with advisories issued by the CDC and the United States Department
of State. Employees traveling to areas with current outbreaks of a communicable
disease should be required to obtain and maintain all recommended vaccinations
and to follow recommended health precautions.
HIPAA and other privacy laws
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires
that an employer protect the privacy of its employees’ medical information.
[45 CFR §§160, 164 (2005)] Employers should consult with legal counsel to determine
which diseases an employee or potential employee must disclose to the employer
and who will have access to the information provided. When there is a need
to inform other employees of a possible workplace exposure, every effort must
be made to maintain the privacy of the infected employee. [45 CFR §164.512(b)]
Employers may wonder whether to test employees during a pandemic in order
to protect other employees. Both federal and state laws strictly regulate the
ability of employers to test employees or to discriminate against employees
who refuse to submit to tests. [See, e.g., California Constitution, Article
1, §1; Cal. Civ. Code §56.20(b)] Employers will have to determine whether to
require testing, leaves of absence or other creative alternatives to safeguard
the safety and privacy of their employees.
Workers’ compensation
Employers should ensure that their workers’ compensation insurance premiums
are paid in full. Without the workers’ compensation exclusive remedy
for workplace injuries, employers experiencing workplace illnesses resulting
from pandemic diseases may be liable under a variety of creative tort claims
for negligence, wrongful death, etc. Under certain conditions, California does
include communicable diseases that are contracted at the workplace within the
list of work-related injuries that are covered by the workers’ compensation
statute. [Cal. Lab. Code §3600(a); 29 U.S.C. §§2601-2654 (2005); 29 C.F.R. §§825.100-.800
(2005)] Employers should consult with counsel about whether the workers’ compensation
bar is available in the states in which they employ workers, paying particular
attention to states in which external sales representatives are based.
Clarify leave of absence policies
Employers should be mindful that a pandemic will likely occur in stages. At
various times, employees may be subject to quarantine; they may be sick at
work, and may need to be sent home; they may be home caring for sick family
members; they may be forced home due to school closures; or they may want to
remain at home in order to reduce the risk of infection to others. Employers
should re-examine their leave policies to maintain compliance with pandemic
social-distancing directives, maintain operations and sustain a functional
and available workforce.
Leave policies should clearly spell out the following items: 1. how the employee
requests leave; 2. any requirements for regularly reporting his or her medical
condition; 3. whether the leave is paid leave; 4. whether any benefits (such
as health insurance, matching 401k contributions, vacation pay, etc.) are provided
or continue to accrue during the leave period; and 5. when the leave is exhausted,
whether the employee will be returned to work.
Statutes and regulations that may affect leave policies
THE FAMILY AND MEDICAL LEAVE ACT
The federal Family and Medical Leave Act of 1993 (FMLA) and implementing regulations
may have a significant impact on leave policies. [29 U.S.C. §§2601-2654 (2005);
29 C.F.R. §§825.100-.800 (2005)] Qualifying employers must permit employees
who have worked 1,250 hours in the previous 12 months to take up to 12 weeks
of unpaid leave due to a “serious health condition.” [29 U.S.C. § 2611(11)
(2005)] Influenza that requires continuing treatment by a physician over a
three-day period will likely be considered a protected “serious health
condition” that triggers the FMLA right to return to a substantially
equivalent job when the leave ends. [See, e.g., Miller v. AT&T Corp., 250
F.3d 820, 832-33 (4th Cir. 2001) (holding that flu symptoms and treatment constituted
serious health condition requiring FMLA leave)] California provides additional
protections to care for family members that must also be considered in conjunction
with the FMLA. [Family Rights Act, Cal. Gov’t Code §12945.2]
ACCOMMODATING DISABILITIES UNDER THE FEDERAL AMERICANS WITH DISABILITIES ACT
AND CALIFORNIA’S FAIR EMPLOYMENT AND HOUSING ACT
Similarly, those employees who suffer permanent health problems affecting
a major life activity like breathing may be entitled to protection under the
Americans with Disabilities Act of 1990 (ADA). [42 U.S.C. §§12101-12213 (2005)]
Once the ADA-protected employee returns to work, the employer will likely need
to engage in the mandated process to determine whether any reasonable accommodation
must be provided to help the employee perform the essential functions of his
or her prior position. [29 C.F.R. §1630.9 (2005)]
As with the ADA, California’s Fair Employment and Housing Act (FEHA)
accommodates employees with disabilities. In fact, the FEHA provides greater
protections than under the ADA, including possible accommodations to temporary
conditions. [Diaz v. Federal Express Corp., 373 F. Supp. 2d 1034, 1051–52
(C.D. Cal. 2005) (holding that unlike the ADA, the FEHA does not have a duration
requirement for a disability)]
ERISA AND ACCRUED LEAVE AND BENEFIT POLICIES
In preparing for a possible pandemic, employers should examine any contractual
promises contained in handbooks and leave policies. These policies may allow
employees to accrue, from year to year, large amounts of paid leave. Employers
may need to consider the inclusion of exception clauses for disasters, emergencies
and epidemics that limit the lump-sum use of such paid leave.
In examining leave and benefit policies, prudent employers will consider the
Employee Retirement Income Security Act of 1974 (ERISA), the federal statute
that governs certain types of employee benefit plans and update and distribute
Summary Plan Descriptions of its benefit plan to participants and their covered
dependents. [29 U.S.C. §§1001-1461 (2005)]
EXAMINE PAY AND TELECOMMUTING RULES
Many employees may be working from home during a pandemic. Those telecommuting
employees who are nonexempt employees under the Fair Labor Standards Act of
1938 (FLSA) [29 U.S.C. §§201-219 (2005)] or under similar California laws and
wage orders can create off-the-clock and overtime issues for employers.
Because California law also requires that employees be permitted periodic
meal and rest periods and that the time worked and meal breaks taken be documented
[California Labor Code §§226(a), 1174(d); California Wage Orders 1-17], noncompliance
with these provisions may also become a problem for telecommuting employees.
The employee who is performing the normal work activities of the job over a
computer from home may be working substantial additional time without management’s
knowledge or supervision.
Additionally, these employees may be checking e-mail and voice mail outside
of regular work hours. These off-the-clock activities may push the total hours
worked in a day over eight hours, or in a week beyond 40, entitling the employee
to overtime pay at one and a half times the regular rate of pay. [29 C.F.R. §785.16(a)
(2005)] In order to avoid problems under the FLSA and California laws, employers
can require employees to check e-mails or to perform work only during specified
hours of each day, to take meal and rest breaks and to care- fully record and
submit documentation of their time worked, and to ask and receive permission
prior to working in excess of 40 hours in a week.
Conclusion
In the very worst of pandemic scenarios, employers may be called upon to be
creative and flexible beyond the requirements of federal and state employment
laws in order to assist employees and maintain a stable workforce.
• Donald Benson and James Hart are shareholders with Littler Mendelson, an
employment and labor law firm representing management exclusively. Benson works
in Atlanta and Hart practices in Orange County.
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- The CDC has set forth three conditions that must exist in order for a global
outbreak of a disease to occur: (1) the emergence of a new type of virus to
which humans have little or no immunity; (2) the capability of this new virus
to infect and cause illness in humans; and (3) the capability of the virus
to spread easily and without interruption among humans.
- An influenza pandemic occurs when a new virus subtype emerges that has
not previously circulated in humans and “starts spreading as easily as
normal influenza — by coughing and sneezing.”
- Public health experts are particularly concerned that H5N1 might ultimately
mutate into a strain that is contagious among humans because it is an Influenza
A subtype and has genetic similarities to influenza strains that have spread
among humans.
- The World Health Organization (WHO) bases its current pandemic planning
on three assumptions: (1) a pandemic would spread to all continents in less
than three months; (2) significant portions of the world’s population
would require medical care; and (3) medical supplies will be adequate in all
countries due to expanded stockpiles of vaccines and anti-viral drugs.
- With a genetic adaptation, H5N1 might no longer be a bird virus, but a
new human influenza virus to which the human immune system would have no pre-existing
immunity so that this lack of immune defense makes it likely that people who
contract such a type of influenza will experience more serious disease than
that caused by normal influenza to which humans have already been exposed.
- In a pandemic scenario, OSHA’s blood borne pathogens and its respiratory
protection standards and the OSH Act’s general duty clause may require
employers to take certain safety steps in the workplace.
- For planning purposes, the California Plan adopted an assumption that the
pandemic could last from 18 months to several years.
- Employers may face various stages of disruption caused by a pandemic including:
(1) overseas occurrence affecting travel and foreign suppliers and customers;
(2) high absenteeism at home, but with the ability to maintain near-normal
operations; and (3) near total absenteeism at home, making it difficult to
keep operations open, along with possible disruption of utilities and quarantines
of the facility area.
- Company travel policies should state that foreign travel should be limited
and in accordance with advisories issued by the CDC and the United States Department
of State.
- California provides criminal penalties for an employer that willfully
exposes person(s) with contagious, infectious or communicable disease to someone
else.
- The federal Family and Medical Leave Act of 1993 (FMLA) and implementing
regulations require qualifying employers to allow employees who have worked
at least 1,250 hours in the previous 12 months to take up to 12 weeks of unpaid
leave due to a “serious health condition.”
- Influenza that requires continuing treatment by a physician over a three-day
period will not likely be considered a protected “serious health condition” that
triggers the FMLA right to return to a substantially equivalent job when the
leave ends.
- California provides additional protections to care for family members
that must also be considered in conjunction with the FMLA.
- The Health Insurance Portability and Accountability Act of 1996 (HIPAA)
requires that an employer protect the privacy of its employees’ medical
information.
- As with the ADA, California’s Fair Employment and Housing Act (the
FEHA) accommodates employees with disabilities. In fact, the FEHA provides
greater protections than under the ADA, including possible accommodations to
temporary conditions.
- California law also requires that employees be permitted periodic meal
and rest periods and that the time worked and meal breaks taken be documented.
- The Employee Retirement Income Security Act of 1974 (ERISA) is the federal
statute that governs certain types of employee benefit plans.
- In order to avoid problems under the FLSA and California laws, employers
can require employees to check e-mails or to perform work only during specified
hours of each day, to take meal and rest breaks and to carefully record and
submit documentation of their time worked.
- Leave policies should clearly spell out the following items: (1) how the
employee requests leave; (2) any requirements for regularly reporting his or
her medical condition; (3) whether the leave is paid leave; (4) whether any
benefits (such as health insurance, matching 401k contributions, vacation pay,
etc.) are provided or continue to accrue during the leave period; and (5) when
the leave is exhausted, whether the employee will be returned to work.
- When there is a need to inform other employees of a possible workplace
exposure, every effort must be made to maintain the privacy of the infected
employee.
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