News + Events
H1N1 Swine Flu Outbreak: How Employers Can Prepare For A Potential Flu Pandemic
May 1, 2009
Ashley Z. Hager
Jana L. Korhonen
The recent outbreak of a new strain of the H1N1virus continues to top world headlines. (The H1N1 virus was commonly known as the “swine flu” virus, but that label has been officially changed.) While the H1N1 flu has been relatively mild thus far, the number of cases in the United States is growing daily. The World Health Organization (“WHO”) has raised its Pandemic Alert Level to 5 out of 6, which indicates “a strong signal that a pandemic is imminent.” United States officials call the H1N1 flu “very serious” and note that the entire government is preparing for a pandemic.
The H1N1 flu outbreak should serve as a reminder to employers about the importance of having a Pandemic Influenza Response Plan. The following is a list of some of the basic steps employers can take to prepare for the potential disruptions to their workforce from a flu pandemic:
Develop a Pandemic Influenza Response Plan.
If your company has not already developed a Pandemic Influenza Response Plan, you should begin this process immediately. Both the WHO and the Centers for Disease Control and Prevention (“CDC”) are indicating that the current H1N1 virus may subside temporarily but be replaced by a more severe virus in the fall or winter. It is not too late to plan, but you must not delay. The primary focus of your Pandemic Influenza Response Plan should be continuity of operations for your organization. You should consider the following items in developing your continuity of operations plan for pandemic influenza:
- Anticipating increased or decreased needs from customers during a pandemic and making the financial preparations accordingly;
- Reviewing the company’s supply chain to determine where and how it might be vulnerable during a pandemic;
- Preparing for potential interruptions in infrastructure, such as transportation and telecommunications;
- Establishing procedures for activating and terminating the company’s Pandemic Influenza Response Plan;
- Considering whether and how to distribute anti-virals for employees and family members;
- Determining how to coordinate communications to employees about the flu, the current threat level, and the company’s Pandemic Influenza Response Plan; and
- Determining how to coordinate with local and federal health and disaster response agencies.
Anticipate and Plan for Increased Employee Absenteeism.
Experts cannot yet predict the significantly increased course of H1N1 flu. Nonetheless, employers should plan for up to 40% employee absenteeism during peak outbreak periods, with lower levels of absenteeism during the weeks before and after that peak. Employee absences could result from, among other things, the employee’s own illness or death, the need to care for family members who are ill, the need to care for children whose schools are closed, or delays or cancellations in flights or other restrictions in transportation. Also, some employees may be hesitant or unwilling to come to work because they feel safer at home. We are already seeing school closures for the H1N1 outbreak, which will put some parents in the position of having to miss work. Further, employers should plan on sending home any employee who arrives to work with flu-like symptoms.
Therefore, employers should identify critical functions within each business unit or department and determine how to keep those functions operational despite the anticipated absenteeism. Employers should keep in mind that a pandemic is not a short duration event; it is likely to last for weeks or months and come in multiple waves. This will affect what employers decide are “critical” functions; the longer the duration, the more “critical” each function becomes. Ideas include cross-training employees, increasing the ability for employees to telecommute (e.g., by enlarging the capacity of remote online access systems), creating teams of employees who can be rotated in to perform the critical tasks, and altering business operations (e.g., limiting or shutting down operations in affected areas). The pandemic influenza guidance issued by the Occupational Safety and Health Administration (“OSHA”) in 2008 recommends that businesses develop “triple redundancy” for critical functions in anticipation of high rates of absenteeism. This may not be practical, especially for smaller businesses or for highly specialized jobs, but should be considered. Because managers are as likely to be affected by the pandemic as everyone else, employers should also identify back-ups for management who will be making key decisions during a pandemic.
Review Existing Policies.
Employers should review their existing compensation, benefits, sick leave and family and medical leave policies to consider how they should be modified to deter sick employees from continuing to come to work while encouraging healthy employees to report to work. Some employers may decide to provide enhanced or lengthened sick time for employees during a pandemic, because they want to prevent employees from coming to work while they are infectious due to financial concerns or concerns that they will lose their jobs if they are absent. Other employers may determine that the widespread absenteeism and other effects of a pandemic will have such a negative effect on the business that they will have to reduce the compensation and benefits provided to employees during a pandemic.
Develop an Employee Communication Plan.
In an emergency, employees often turn to their employers for reliable information and support. Consequently, if a pandemic occurs, employers should develop and distribute to their employees materials containing information about:
- The virus itself (e.g., signs and symptoms of the flu and how the flu is transmitted). H1N1 flu, for example, may be spread by being in close proximity to infected pigs or by human-to-human contact. H1N1 flu is not transmitted by eating pork;
- The progress of the pandemic, both internationally and domestically, which can be obtained from the CDC and WHO websites (www.cdc.gov and www.who.int);
- Steps employees can take to prepare and protect themselves and their families (such as stockpiling necessary items, using proper hygiene, developing contingency plans, and consulting their doctors if they develop flu-like symptoms in accordance with the latest guidance from the CDC); and
- The employer’s pandemic contingency plan.
Employers can monitor the websites of federal and state public health agencies, international agencies, and industry groups for up-to-date information regarding the pandemic. Additionally, some state health departments have set up telephone call centers.
Consider Legal Implications of Prevention and Response Strategies.
Finally, employers should be aware that a number of federal and state laws may be implicated by the development and implementation of effective response plans and strategies. For example, as employers extend and amend existing policies and develop and implement strategies to manage extended employee absences, they may be required to bargain over the changes under the National Labor Relations Act or pay additional overtime under the Fair Labor Standards Act to non-exempt employees working an alternative work schedule. Likewise, employers will need to comply with any pandemic preparedness guidelines or regulations promulgated by OSHA. Other laws that may be implicated include workers’ compensation laws, the Health Insurance Portability and Accountability Act (“HIPAA”), the Americans With Disabilities Act, and state disability laws.
Additional information about H1N1 flu and planning for a possible flu pandemic can be obtained at www.pandemicflu.gov. If you have questions about developing a Pandemic Influenza Response Plan for your workforce, please contact Troutman Sanders LLP’s Labor and Employment team. To access Troutman Sanders LLP’s Pandemic Influenza Resource Center, click here.