Pandemic Pandemonium

Saturday, July 1, 2006 - 01:00

It is impossible to open a newspaper, surf the web or turn on the TV and not see or hear something about the avian flu and the potential for a pandemic. Experts predict that if the pandemic hits full force, up to 40 percent of the population could become infected within just two weeks. Literally, hundreds of thousands could die.

Is there some media hype? Perhaps. However, as we all know (or should know) from Hurricane Katrina, it's incredibly dangerous to fail to comprehend the incomprehensible.

To varying degrees, all businesses need to prepare now for how they will operate in the event of a pandemic. This article discusses some of the more salient employment considerations organizations will need to consider as part of the planning process.

Legal Duty To Prepare And Protect

The business need to prepare for a pandemic is axiomatic. However, there also are legal considerations that support the business imperative.

Under OSHA's general duty clause, an employer has a duty to maintain a safe workplace for its employees.

Employers also may be liable to third parties under common law negligence principles. More specifically, if infected employees come into contact with third parties (customers, clients, etc.), the employer may be liable for negligence if a jury concludes that the employer knew or should have known the employees were infected and failed to take appropriate barrier precautions.

There also are contractual considerations. If a large percentage of the work force is absent, an employer may not be able to meet its contractual obligations to customers, clients, etc. The absence of reasonable efforts to prepare for a pandemic makes less likely any defense otherwise available to non-compliance.

These are only some of the legal risks in not preparing adequately. Be as creative as a plaintiffs' lawyer, and you can come up with endless possibilities.

Reliance On Professionals

While the need to develop a crisis plan is clear, less clear is how much is enough. To make this determination, employers are well advised to consult with crisis management professionals, who will see things that we otherwise would not see. Also, consultation with such professionals will help demonstrate that we have acted reasonably (in other words, not negligently), assuming, of course, that we follow their advice.

One particularly difficult aspect of crisis management is whether and when to quarantine employees. The employer is the arbiter of the clash of rights between the healthy and the infected.

When it comes to these and other medical issues, we should seek out and rely upon medical advice. A pandemic is not inconsistent with the ADA's mandate that we make medical judgments based on objective medical information and not unfounded subjective fears.

Of course, if there is a pandemic, it is going to be tough to find professionals to guide you. Engage them now, when you can. Consider developing contractual obligations with them to provide you with priority service in the event of an emergency.

In the interim, you can get started by taking advantage of some of the information provided online by the various branches of the federal government. In particular, check out and act upon:

1. www.pandemicflu.gov/plan/businesschecklist.html

2. www.osha.gov/dsg/guidance/avian-flu.html

3. www.cdc.gov/flu/avian/index.html

Telecommuting

The most obvious employment impact of a pandemic is not having the labor power necessary to operate fully. Every employer will need to figure out what are the core functions that must be done, how many people it takes to get them down and how to get them done in the event the work place is not a safe place.

One partial answer is telecommuting. However, what we do for crisis management purposes may be discoverable and relevant for employment purposes independent of the crisis.

As we all know, employees sometimes request telecommuting as a reasonable accommodation for a physical or emotional condition. Sometimes, our response is that the employee cannot perform the job remotely, since some of the essential functions must be done at work.

But what happens if the crisis management plan indicates that certain jobs can and in fact must be done remotely in the event of an emergency? If discovered in litigation, the crisis plan may undercut an employer's position that telecommuting is not a reasonable accommodation for a particular position.

This risk can be minimized if the employer makes clear in its crisis plan that the potential viability of telecommuting is only for a limited period of time. Moreover, if an employee who telecommutes cannot perform all of the essential functions, the employer should document this too. This helps an employer argue that, while 70 percent is better than zero percent during a crisis, that does not mean an employer must settle for only 70 percent in the absence of a crisis.

Union Issues

Expanded telecommuting is not the only operational change that employers will need to consider. Employers also may need to consider schedule changes, cross-training, having supervisors perform non-supervisory work, extended overtime, etc.

In the non-union context, these issues can be difficult. In the union context, they are potentially more troublesome.

Employers need to consider whether there are any contractual restrictions. Even if the contract does not impose restrictions with regard to a desired change, the employer still may need to provide the union with notice and bargain upon request.

This is not to suggest that an employer should refrain from taking necessary preventive and remediable actions because of a union contract or union relationship. The union risks need to be balanced against the death risks.

However, the union risks can be minimized materially if an employer reaches out to the union proactively as a partner to help it develop its crisis management plan. And, if the union is not cooperative, take some comfort in knowing that the NLRB and arbitrators have provided unionized employers with greater (but not absolute) flexibility to respond unilaterally during a true crisis.

Payment Issues

During a pandemic, employers may have to shut down certain operations on a temporary basis. Employers need to be mindful of the FLSA's salaried basis requirement as applied to exempt employees.

Generally speaking, if an exempt employee is "ready, willing and able" to work, the employer must pay the exempt employee if the employer prevents the employee from working. The only exception is if the exempt employee does not do any work for an entire work week.

The FLSA also must be considered where the employer is open for business but an exempt employee is unable physically to report to work. While employers can and should encourage (if not require) employees who are ill to remain at home, most employers will still need their employees to perform some work from home.

If an exempt employee does any work from home (online or otherwise), he or she may have to be paid for the entire day. As we all know, unless the absence is covered by the FMLA, an employer cannot dock the pay of an exempt employee for absences of less than a full day.

For non-exempt employees, employers are going to need to develop systems by which non-exempt employees who are working remotely track all of their work time to ensure proper payment.

Quarantine

Perhaps the most difficult issue for employers will be to keep out of the work force those who are sick and may infect others. This issue may arise in a number of ways.

As an initial matter, many employees come to work even when they are sick. In a pandemic, we need to reverse the mindset. Coming to work is the worst thing an infected employee can do. Employees need to be told that coming to work with the flu or flu-like symptoms is prohibited and cause for discipline, up to and including discharge.

To encourage employees who need to stay at home to do so, employers may need to liberalize, temporarily, their PTO policies and/or suspend, temporarily, their attendance control policies. Any liberalization should make clear the special reasons for it and the narrow time period of it.

Even so, some employees who should not be at work will want to report to work. Employers may want to consider screening all employees before they are permitted to enter the work place. For example, some employers are talking about taking the temperature of all employees before work begins.

There is a question as to whether this is medical examination under ADA. If so, an employer can do so only if job-related and justified by business necessity. One would hope/expect most judges would recognize that a true pandemic in the employer's geographic vicinity establishes business necessity.

If an employee is denied access to work, the employer should be clear that it is not because the employer has concluded that the employee has the flu but only because of the symptom which may, but does not necessarily, correlate with the flu. This will help the employer minimize the risk of a perceived disability claim.

Employers also need to consider guidelines for when they will send home employees who are working. Again, these guidelines should be established in consultation with medical professionals.

In all cases, employers need to ensure the confidentiality of any medical information that they receive. Even during a pandemic, casual or careless disclosures of medical information may result in liability for invasion of privacy (public disclosure of private fact).

Preventive Safety Measures

There are a number of preventive safety steps employers will want to consider. By way of example only:

1. Stockpiling vaccines and encouraging employees to be vaccinated.

2. Improving air circulation.

3. Stocking up on masks and other barrier precautions and requiring the universal use of such barrier precautions during a pandemic.

4. Special cleaning of surfaces on which the virus may remain alive (and requiring that those who do the cleaning use universal barrier precautions).

5. Educating employees to stand at least three feet from each other, not to shake hands, etc.

6. Restricting travel to certain designated countries in accordance with then current CDC recommendations.

7. Avoiding crowded meetings and the sharing of cubicles.

However, even with regard to these relatively straightforward recommendations, there are potential legal issues.

For example, there is no problem in restricting travel to countries at the epicenter of the pandemic. However, employers need to be careful that does not result in discrimination against employees who are originally from those countries. There is no pandemic exception to Title VII's prohibition on national origin discrimination any more than there was a 9-11 exception.

However, unlike 9-11, all employers have time to prepare. For those who don't heed the warning, the pandemic may result in medical, emotional and economic pandemonium.

Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.