Human resources departments can play a critical role in ensuring that an organization is prepared to address the impact of a pandemic flu, both in terms of the workforce, as well as on all operational fronts.

Late Wednesday, as swine flu continued to spread, the World Health Organization raised the influenza pandemic alert to Phase 5, signaling that a pandemic is imminent and the time to finalize the organization, communication, and implementation of planned mitigation measures is short. Within the past week, the Centers for Disease Control and Prevention recommended avoiding all non-essential travel to Mexico, and U.S. Department of Health and Human Services (DHHS) issued a nationwide public health emergency declaration.

The Occupational Safety and Health Administration estimates that a true pandemic, at its peak, could impact as much as 40 percent of the U.S. workforce. Planning for a pandemic implicates many legal issues. The lawyers at Ballard Spahr are prepared to assist you with your planning and preparedness measures.

A list of precautionary steps follows below.

Promote Healthy Workplace Habits. According to the CDC, there are a number of steps that can be taken to prevent the transmission of any flu virus, such as staying home when sick, frequent hand-washing, and avoiding touching one's eyes, nose and, mouth. In addition, employers may want to consider providing more infection-control supplies in the workplace, such as hand soap, tissues and disposal receptacles, and disinfectant hand gel. Consider sharing information with your employees about personal precautions and measures that reduce the spread of the flu virus. These tips and others can be found on the CDC's Web site, along with sample workplace flyers and posters addressing these issues.

Employee Absenteeism. Plan ahead for the impact of a potential spike in absenteeism. Employees may be ill or may need time off to care for ill family members. During a pandemic flu outbreak, employers may want to encourage employees who develop flu symptoms to stay home, rather than risk spreading the virus. Consider the impact on the organization if personnel who occupy unique or critical positions are absent, perhaps for an extended period of time. Assume that temporary staffing agencies will be flooded with requests for workers and also may be experiencing higher than ordinary absenteeism levels.

From a legal perspective, remember that the flu, while considered a "common ailment" for Family and Medical Leave Act purposes, nevertheless may rise to the level of a serious health condition if it otherwise meets the regulatory definition. Leave, therefore, may be job-protected. Also, when making medical inquiries about illnesses or ailments, employers must keep in mind that the Americans with Disabilities Act limits the circumstances under which such inquiries may be made of current employees.

Policy Changes. A pandemic outbreak and the attendant workforce impact may require temporary changes in employer policies. More liberal attendance and absenteeism policies may be warranted. Employers may want to consider measures that will reduce face-to-face contact during an outbreak, such as telecommuting, staggered work schedules, suspension of group meetings, and granting more liberal access to leave benefits.

Travel and Meeting Plans. Evaluate international business travel plans, both into and out of the United States, in light of the most current information about the spread of the swine flu. Consider the advisability of large employee meetings, particularly if employees from around the country will be there. If you learn that employees are traveling to high-risk areas for non-business purposes, such as Mexico, consider how you will handle the employee's return to the workforce and whether it is advisable to delay the return until expiration of the swine flu incubation period (perhaps as long as seven days).

External Communication Channels. Establish external communication channels about the swine flu and a potential pandemic. Identify reliable Web sites to obtain the most current information. For example, both the CDC and the federal government have Web sites with daily updates. Many governmental agencies already have adopted pandemic response plans. Communicate with those agencies to learn about how they plan to provide essential services (police, fire, ambulance, and transportation) and steps they expect area employers to take during a serious outbreak.

Internal Communication Channels. Employers should establish and maintain regular communication with the workforce to alert employees about flu-related precautionary measures, preparedness initiatives, and policy changes. Proactive communication will help to address employee fears, anxiety, and misperceptions about the influenza. Employees should understand what symptoms are associated with swine flu and take appropriate steps when they develop symptoms.

Stockpiling Influenza Vaccine. Some employers may consider stockpiling influenza vaccines for their workers, such as Tamiflu or Relenza. The U.S. government strongly encourages all employers to plan for a pandemic and recognizes that access to antiviral drugs can serve as an important part of a layered approach to pandemic mitigation. Both the federal government and many states are stockpiling vaccines. Private employers also may wish to consider this approach, taking into consideration the attendant legal, regulatory, logistical, and economic issues. To learn about vaccine stockpiling, read the report published by titled, "Considerations for Antiviral Drug Stockpiling by Employers in Preparation for an Influenza Pandemic."

High-Risk Employers. Employers in certain industries, such as health care, are deemed at higher risk for workforce exposure in the event of a pandemic flu. OSHA has issued a number of guidance documents addressing the measures such high-risk employers should consider, such as engineering and administrative controls and work practices, and the potential need to stockpile respirators and facemasks as a contingency measure.

If you have any questions regarding this alert, please contact Brian D. Pedrow at 215.864.8108 or or any member of the firm's Labor, Employment and Immigration Group.

Copyright © 2009 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This newsletter is a periodic publication of Ballard Spahr LLP and is intended to alert the recipients to new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and specific legal questions you have.