Avian Flu Pandemic Preparation for Employers

Government experts are now projecting that the bird flu virus (H5N1) may reach the United States in the next three to six months. If avian flu becomes a pandemic, the Centers for Disease Control (CDC) estimates there could be as many as two million infected people, and 100,000-200,000 or more deaths, in the U.S. alone. Experts recommend that employers make contingency plans now. (See CDC's website for more information on bird flu, and recommendations for pandemic preparation.) Many employers will be able to build on disaster contingency plans they developed in response to severe acute respiratory syndrome (SARS) and other disasters. See our previous publication, Dealing With SARS Issues in the Workplace.

Typical Subjects for Contingency Plans. Although avian flu contingency plans vary among employers based on business needs, most plans focus on:

• business continuity planning – cross-training employees and building a telecommuting infrastructure to permit employees to work from home.
• travel restrictions/evacuation preparation – monitoring conditions throughout the world to determine when to evacuate expatriates and when to restrict business travel to certain locations.
• procedures for detecting and mitigating the spread of bird flu in the workplace.

Potential Issues. Contingency plans with these elements raise several benefit and employment law issues:

• As an overriding principle, workplace safety law requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm (See the Occupation Safety and Health Administration's current guidance on avian flu);
• Employers must be concerned about how they will be able to detect bird flu symptoms among employees and communicate information to affected employees and others without violating applicable privacy laws. In general, the HIPAA privacy rules will not govern such uses and disclosures of health information related to the bird flu, unless employers obtain such health information from their health plans. Further, HIPAA may permit uses or disclosures of protected health information which are necessary for public health reasons – that is, to prevent or control the spread of bird flu. Employers should also check state medical privacy rules regarding such issues. Finally, the Americans with Disabilities Act and many state fair employment practices statutes may also affect an employer's ability to make disability-related inquiries or to require an employee to undergo a medical examination.
• Employers may need to review their leave policies to see whether changes are necessary to permit extended leaves, and continuation of benefits and pay during such leaves, in order to encourage sick and/or exposed workers to stay home. FMLA-eligible employees with bird flu symptoms or infection, or who take leave to care for sick family members, should qualify for FMLA leave. However, there will likely be many absent employees who do not qualify or are not eligible for FMLA leave.
• Employers may want to consider starting an Employee Assistance Plan to address stress and emotional issues involved with pandemics, and as an additional resource to assist employees with pandemic preparation. Employers who already have EAPs should check whether EAP resources are available to assist them and their employees with preparation for a bird flu pandemic.
• It is reasonable to expect that if a pandemic does occur, the IRS and Department of Labor would issue relief from benefit plan requirements similar to what we have seen in the wake of Hurricane Katrina.

Undoubtedly, if migrating birds infected with bird flu reach the United States, the CDC and other experts will issue new recommendations and guidelines. We will be monitoring these developments as they unfold. If you have any questions in the course of preparing your bird flu pandemic contingency plans, please contact one of our benefits or employment lawyers.