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COVER STORY Don’t Just Wing It How should Tennessee 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?[1] What is the employer’s role in promoting quarantine effectiveness, social distancing or preventative hygiene? Or, is the near-hysteria over the possibility of a pandemic caused by avian influenza or another similarly contagious illness merely the latest version of a doomsday forecast, similar to the prediction that Y2K would shut down global business operations? That prediction spawned an entire industry devoted to business preparations for the millennium, and almost every company of significant size devoted considerable amounts of management and IT time and capital to achieving readiness for Y2K. Of course, many attorneys, accountants, consultants and vendors profited handsomely from these efforts, but it should be noted that business productivity gains in the early years of this century may be due, in no small part, to the updating and planning that occurred in advance of Y2K. Accordingly, it is possible that the current alarmist news coverage focused on the possibility of a pandemic may encourage similarly creative business and legal planning that will not only help to minimize the effects of any such pandemic, but also foster the type of productivity gains that resulted from the attention devoted to the threat of Y2K. This article will first examine the nature and threat of the pandemic occurrence of a disease such as avian influenza and its possible effects on Tennessee business operations. It will then discuss pertinent federal and Tennessee state regulations and guidelines including the “State of Tennessee Department of Health Pandemic Influenza Response Plan.” Finally, the remainder of the article will highlight some of the major legal and logistical issues on which counsel should advise business clients in an effort to ensure that they are properly prepared for a possible pandemic. Pandemic: A Global Outbreak of 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.[3] The 1918 pandemic killed an estimated 40 to 50 million people worldwide.[4] Although the 1918 “Spanish influenza” was exceptionally deadly, the two subsequent pandemics also caused significant human deaths, including an estimated two million deaths in 1957 and one million deaths in 1968.[5] 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.[6] 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.[7] Transmission from birds to humans has been relatively rare, but 348 confirmed cases have resulted in 216 deaths in a wide geographic area including Azerbaijan, Cambodia, China, Djibouti, Egypt, Indonesia, Iraq, Thailand, Turkey and Vietnam.[8] 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.”[9] 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.[10] 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.[11] 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.[12] What Is the Threat of the Occurrence of a
Pandemic and Potential Level of Disruption? The WHO is currently working under three assumptions with regard to planning for a possible pandemic. The first assumption is that a pandemic would spread to all continents in less than three months.[14] The second assumption is that significant portions of the world’s population would require medical care, and the third is that medical supplies would be inadequate in all countries due to limited supplies of vaccines and anti-viral drugs.[15] Based on the comparatively mild 1957 influenza pandemic, the WHO projects approximately 2 million to 7.4 million deaths worldwide.[16] The level of disruption to business that might be posed by a pandemic will depend in part on the stage of the pandemic. Past pandemics have generally occurred in two or three waves, so that not all countries experienced the same level of disruption at the same time.[17] Thus, 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. Business disruption levels also will be significantly affected by the level of interdependence between a business’s operations in the United States and businesses in other areas of the world in which the pandemic is most likely to start. Many American businesses are now directly a part of, or directly affected by, the global economy. These companies sell to or buy from locations in other countries. If those countries experience a pandemic that significantly limits their ability to buy American products or to deliver the goods and services that United States companies have purchased, the ability of American plants and operations to stay open in the United States will be affected. Overall, not only could the lead time for influenza pandemic planning be extremely short, but uncertainty regarding the level of disruption that a particular virus may pose makes the problem even more vexing for planners. SARS was ultimately contained far short of causing massive deaths and disruptions to worldwide commerce, and, to date, the spread of smallpox or anthrax through bioterrorism has been largely avoided. Nevertheless, business planners may do well to heed the current alarms about the potential disruption that a virus such as avian influenza could cause, given the history of past influenza pandemics and the ever increasing level of global connectivity. Pertinent Federal Government Regulations and
Guidelines In a pandemic scenario, OSHA’s blood-borne pathogens standard and respiratory protection standard[19] would come into play. In addition, the “general duty” clause of the Occupational Safety and Health Act[20] requires an employer to provide a safe and healthy work environment for employees, thus giving OSHA broad statutory authority for issuing new regulations. In November 2006, OSHA acted on this authority and issued new guidelines for various types of persons who might be affected by an avian influenza pandemic, such as those who clean areas affected by the virus, airline personnel and citizens living abroad.[21] Given the fact that the source of a virus is often birds or animals, the USDA also can be expected to play a major role in preventing the spread of any pandemic virus. For example, to stem the spread of avian influenza virus to the United States, the USDA helped to enforce a federal ban on the importation of all birds from the Asian countries that experienced an outbreak of the virus. In February 2007, the CDC issued new community standards for mitigating an avian flu pandemic.[22] These mitigation guidelines include social distancing strategies to reduce contact between people during the outset of a pandemic when vaccines and medicines will not be readily available. These guidelines include closing schools and daycares for up to 12 weeks, canceling public gatherings, planning for liberal work-leave policies and telecommuting strategies, and the voluntary isolation of cases and quarantine of household contacts. These guidelines also include the new Pandemic Severity Index, which rates the severity of an influenza outbreak from levels 1 through 5, much like the Saffir-Simpson scale used by the National Hurricane Center to rate a hurricane’s intensity. The use of social distancing measures will be based on the Pandemic Severity Index, matching the level of distancing methods to the magnitude of the pandemic. Pertinent Tennessee State Government
Regulations and Guidelines Under the Planning Resolution, the HHS has accepted responsibility for providing guidance, technical assistance, and (subject to available funding) financial assistance for pandemic planning. The state of Tennessee has agreed to devote numerous resources to state and local planning and the development of an operational plan for responding to a pandemic influenza. In July 2006, Tennessee issued this operational plan which covers such areas as disease surveillance, infection control, and the allocation of scarce resources.[24] The operational plan also includes recommended social distancing strategies for schools and businesses that will be implemented under the authority of the Tennessee Commissioner of Health.[25] Tennessee bases its plan on the 1918-1919 influenza pandemic.[26] The plan adopts for planning purposes the following assumptions: Such an influenza will have an incubation period of an average of two days.[27] Sick patients may shed the virus up to one day before symptom onset and the peak infectious period is the first two days of illness.[28] Each ill person could cause an average of two to three secondary cases if no interventions are implemented. Planners anticipate at least two “waves” of local epidemics for most communities, although they may be more severe if they occur in fall and winter.[29] Each wave of pandemic disease in a community will last six to eight weeks.[30] The entire pandemic period will last two years before the virus becomes a routine seasonal influenza strain.[31] Using these assumptions, the Tennessee plan estimates that planners should anticipate a severe pandemic creating 1.8 million illnesses (30 percent of the population); 900,000 patients in need of outpatient care; 198,000 hospitalizations; 29,700 intensive care unit cases; 14,850 in need of mechanical ventilation; and 38,060 deaths (2 percent).[32] Based on guidance issued by governmental agencies thus far, employers may be faced with very detailed governmental workplace regulations in the face of a pandemic. Accordingly, preparation for a pandemic should include identifying the management team responsible for monitoring new governmental regulations and adopting procedures for communicating changes to affected supervisors and employees to ensure compliance with any new requirements. Preparation in the Workplace Communicable Disease Policy Communicable Illness Travel and Quarantine Policies The potential for the imposition of quarantine for travelers to certain areas also must be considered. If an employee travels for work reasons to a region for which quarantine upon return home is required or advisable, the employer should request the employee to inform his or her supervisor or human resources department immediately so that home work assignments or paid administrative leave can be arranged. If an employee travels on personal business to a region requiring quarantine upon his or her return home, the company should consider allowing the employee to use sick leave, accrued paid-time-off or vacation time, or be placed on unpaid administrative leave. If the employee is diagnosed with a communicable illness or quarantined in association with such an illness, the company should consider requiring a note from a medical provider stating that the employee may safely return to work before permitting the employee to return to the work site. The Tennessee Plan recommends that businesses consider setting a protocol for the conditions triggering a business closure and establishing plans for how to cope with a period of closure.[33] Mandatory closure of gatherings of more than one hundred persons may be ordered during a severe pandemic (defined as one that kills roughly one in 50 ill persons).[34] Compliance with HIPAA Workers’ Compensation Clarify Leave Policies In some or all of these situations, both the CDC’s and Tennessee’s response plans stress that employers should consider how to use leave policies to (1) maintain compliance with pandemic social distancing directives; (2) maintain operations; and (3) sustain a functional and available workforce. Employers must recognize that a pandemic presents a double-edged sword to the average American worker — go to work and risk becoming ill, or stay home from work and risk losing your job and ability to support your family. According to a recent poll conducted by the Harvard School of Public Health, a large proportion of working adults with children thought that, if faced with pandemic conditions, they could arrange childcare so that at least one employed adult in their household could go to work if schools and daycares were closed for an extended period of time.[39] However, when asked about possible financial difficulties due to missed work, a greater number of adults reported they would face financial problems, especially if they were forced to miss work for seven to 10 days.[40] Therefore, an employer’s pandemic response plan should ensure that leave policies address the needs of the employer as well as the employee. Leave should be employed in such a way as to limit unnecessary social interaction but minimize the more troubling effects of employee absenteeism on business operations and an employee’s financial situation. Paid leave, or unpaid leave with health benefits, can mean the difference in maintaining the work force in the area or experiencing significant employee turnover. Avoiding such turnover can be particularly significant as a business seeks to resume normal operating levels. Similarly, fighting every claim for unemployment benefits may not be in the employer’s interest if the denial of benefits encourages the pool of available workers to shift to areas unaffected by the disease. Ensuring that there is a leave plan in place and that the plan has been communicated to employees will help to minimize the impact of workplace absenteeism on both employers and employees, whether the emergency is a pandemic or a natural disaster such as Hurricane Katrina. In considering leave issues, business clients should be counseled on the requirements of applicable federal, Tennessee state and local leave laws that govern paid or unpaid leave for sick employees; employees caring for immediate family members; first-responder health care providers; and employees called to active military service to enforce a quarantine. 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 Americans with Disabilities 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).[45] 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.[46] 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. Employers who fail to plan for such contingencies could experience tremendous financial liability for such leave at the time when they can least afford it. In examining leave and benefit policies, the Employee Retirement Income Security Act of 1974 (ERISA), the federal statute that governs certain types of employee benefit plans, must be considered.[47] Prudent employers will at once confirm that the proper, updated Summary Plan Descriptions (SPD) of its benefit plan are distributed to plan participants and their covered dependents. Otherwise, the plan provisions allowing the plan to be changed may not be enforceable.[48] Worse still, if the employer cannot prove that the participant or beneficiary received a revised SPD, then the employer may be required to provide higher benefits according to some previous, and more generous, version of the plan.[49] Further, in the event of a pandemic, a self-administered plan will have an immediate need to increase the size of its administrative staff to handle the anticipated increase in benefit requests and appeals. Unfortunately, under ERISA, the question of whether or not the participant is entitled to benefits will most often be determined based solely on the record before the plan administrator (whether an in-house benefits administrator or a third-party entity hired to provide and record benefits), not at some future time when lawyers can flesh out the file through discovery. Accordingly, it is crucial that the plan allocate sufficient resources to develop fully the administrative file, or benefits may be later awarded by the courts to otherwise unqualified applicants. Examine Pay and Telecommuting Rules A pandemic may lead to many employees working from home. Those telecommuting employees who are non-exempt employees under the Fair Labor Standards Act of 1938 (FLSA)[50] can create off-the-clock and overtime issues for employers. 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 email and voice mail outside of regular work hours. These off-the-clock activities may push the total hours worked in a week beyond 40, entitling the employee to overtime pay at one and a half times the regular rate of pay.[51] In order to avoid problems under the FLSA, employers can require employees to check emails or to perform work only during specified hours of each day, to carefully 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. Communicating a Pandemic Response Plan to
Employees In addition, employers should ensure that their pandemic response plan covers the basic aspects of emergency planning in a way that employees can understand. The following is just a handful of concerns that a business’s pandemic response plan should address:
These concerns, and many others, should be addressed clearly and concisely. Once approved, the pandemic response plan should be distributed to all employees either via the employee handbook or special publication. Each employer should also maintain a copy of the response plan on their premises for easy access. Conclusion • • • DONALD W. BENSON is a senior litigator at the Atlanta office of Littler Mendelson PC. He received his bachelor’s degree from Davidson College; his masters in philosophy from the University of Georgia; his law degree in 1984 form the University of Utah in Salt Lake City, Utah. He is a member of the Tennessee and Georgia bars and former judicial law clerk of Judges Robert Taylor and James Jarvis in the U.S.D.C., Eastern District of Tennessee. He can be reached at dbenson@littler.com GINA M. COOK represents and counsels management clients in all areas of employment law arising under state and federal law.. She received her law degree from the University of Georgia in 2005, cum laude, and her bachelor’s from Berry College in 2002, summa cum laude. She has practiced in both Tennessee and Georgia and is currently an associate with Littler Mendelson PC in Atlanta. • • • Notes
Tennessee Bar Journal
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