Pandemic Planning: Active Participation By The Legal Department Is Critical

Thursday, November 1, 2007 - 01:00

The risk of a pandemic flu is a reality. The World Health Organization as well as other national and international public health organizations believe that the world is closer to an influenza pandemic than at anytime since 1968. A pandemic occurs when a new influenza virus type causes disease in humans and spreads easily from human to human. The 20th Century saw three major pandemics. The worst was the Spanish Flu of 1918-1919. The flu infected 25 to 30 percent of the world population and caused between forty and fifty million deaths. Less lethal pandemics occurred in 1957-1958 and 1968-1969.

Advances in vaccines and medicine generally will not prevent a pandemic. Public health experts currently are focusing on avian influenza H5N1 which has been detected in birds in Europe, Asia and Africa. On October 2, 2007, the World Health Organization ("WHO") reported that, since 2003, there have been 330 human cases of laboratory-confirmed H5N1 avian influenza with 202 deaths. Experts believe that all of these cases were caused by bird to human transmission. If the avian influenza evolves to allow human to human transmission, the public health impact would be rapid. H5N1 is virulent and humans would have limited existing immunity. If the H5N1 virus does not mutate, history nonetheless suggests that a different novel influenza virus will emerge to launch the next pandemic. Any new virus would spread across geographic regions in waves, each wave lasting three to five months. It will take months after the influenza begins to spread in humans to develop vaccines and, when those vaccines are developed, they will be subject to government established priority systems.

A worldwide outbreak of a new influenza virus could result in millions of deaths, millions of hospitalizations, and billions of dollars in direct and indirect costs to the economy. In a June 2006 study, the World Bank projected that a mild pandemic, modeled on the 1968 Hong Kong epidemic, could cause between 2 million and 7.4 million deaths worldwide, and a severe pandemic, modeled on the 1918-1919 pandemic could lead to as many as 70 million deaths.1Health care providers will be stretched to the breaking point. Businesses may lose up to forty percent of their workforces to death, illness, fear of exposure to the infection, or the need to care for either sick family members or healthy children who must stay home from closed schools. Fully considering the wide range of potential impacts on daily life, the availability of goods and services, transportation, health care and education, among other things, is staggering.

Government Response

International and national public health organizations recognize that comprehensive planning is critical to managing a pandemic. WHO is coordinating the global response to human cases of H5N1 avian influenza and monitoring the corresponding threat of an influenza pandemic. The goals for the government entities are: (1) to contain and control an avian flu outbreak to prevent transmission to humans; (2) to minimize illness and death if human to human transmission begins; (3) to sustain infrastructure services; and (4) to mitigate the impact to the economy and the functioning of society.

The United States has launched an active campaign surrounding pandemic planning. The White House issued a National Strategy for Pandemic Influenza in November 2005.2The strategy outlines the respective responsibilities held by individuals, industry, state and local governments, and the federal government for preparing and responding to a pandemic. Virtually every federal agency has a pandemic preparation implementation plan on its website. The federal government has established its own pandemic flu website, www.pandemicflu.gov. Among the items on the website are various "checklists" to use for pandemic planning. They are available under the "Workplace Planning" tab. The first item under that tab is a public letter to businesses signed by the Secretaries of the Departments of Homeland Security ("DHS"), Health and Human Services ("HHS"), and Commerce. The letter stresses the need for businesses to plan and recommends the "checklists" on www.pandemicflu.gov.

The Occupational Safety and Health Administration ("OSHA") of the Department of Labor has published guidance relating to pandemic planning. OSHA has published the "OSHA Guidance Update on Protecting Employees from Avian Flu (Avian Influenza) Viruses," OSHA 3323-10N 2006,3which provided guidance on protecting employees in certain industries or with certain jobs. OSHA published "Guidance on Preparing Workplaces for an Influenza Pandemic," OSHA 3327-02N 2007,4which could be applied more broadly and "Pandemic Influenza Preparedness and Response Guidance for Healthcare Workers and Healthcare Employers," OSHA 3328-05 2007.5 These guidance documents discuss steps businesses can take to protect employees.

Many states also have websites that discuss both their planning activities and what businesses should do. The level of detail in the "checklists" varies from state to state. Locally, the Maryland website discusses only Maryland's planning; the District of Columbia's efforts can be reviewed on www.pandemichelp.org; and the Virginia website provides links to the federal government's website and other websites when you look for business planning information. Many states began to improve and increase the amount of information available over the course of the last year as representatives of HHS and DHS visited various states to hold workshops and roundtables on pandemic preparation.

Challenges For Business

There can be no debate that businesses have a duty to plan for a pandemic. The National Strategy published by the White House calls on businesses to plan and to strive for business continuity. OSHA by issuing guidance on preparing the workplace for influenza may have established a statutory obligation to plan to protect workers in the event of a pandemic. Indeed, the increasingly more vocal dialogue ongoing at a national and international level could be creating a standard of care that requires pandemic planning on a grand scale. Michael T. Osterholm, Director of the Center for Infectious Disease Research and Policy, has said:

The business community can no longer afford to play a minor role in planning the response to a pandemic. For the world to have critical goods and services during a pandemic, industry heads must stockpile raw materials for production and preplan distribution and transportation support. Every company's senior managers need to be ready to respond rapidly to changes in the availability, production, distribution, and inventory management of their products. There is no model for how to revive the current global economy were it to be devastated.6

Such pronouncements set a very high bar for businesses.

The challenge faced by businesses is that pandemic planning is not like other disaster planning. Many businesses have prepared contingency plans for natural or man-made disasters such as fires, hurricanes, floods, earthquakes or terrorist attacks. These plans, however, are often restricted to one geographic area and address a relatively short period of business closure. Pandemic flu differs in that it has the potential to impact communities around the world at the same time and could come in waves that continue to impact significant numbers of people for 12 to 24 months. Every link in the chain that allows a business to operate may be catastrophically impacted.

Another challenge faced by business is that there is no comprehensive, reliable planning template. The world has not seen a pandemic in the modern era of an interconnected global network of workers, products and services. Federal governments, state governments, and even some communities are publishing information on how to plan. The universe of "checklists," guidance, and data that governments are publishing is both overwhelming and inadequate. These publications have the potential to set a standard of care for conduct that is so amorphous it is impossible to meet. In the litigious United States of America, the existing landscape in which pandemic planning must take place is a mine field that must be navigated carefully to avoid an explosion of post-pandemic lawsuits by employees, customers, suppliers, shareholders, and others.

Moving Forward

Unlike other emergency and business continuity planning, pandemic planning requires consideration of short and long term impacts on a variety of topics, including: employee safety and health, community support and coordination, communication strategies, critical task coverage and employee/management succession, supply chain continuity, business services continuity, and for when the pandemic subsides, rapid recovery policies and claims processes for claims that might arise. The breadth of topics to be covered requires a diverse group of representatives from different parts of the company to develop an adequate plan.

Legal co-ordination of the people involved and the process of planning is critical for at least two principal reasons. First, planning requires an assessment of potential legal liability. Human resources policies may need to be modified considering the potential length and severity of a pandemic, as well as the need to limit the spread of infection and to account for the unavailability of public services such as schools and public transportation. Disability and leave policies, therefore, should be reviewed. They may need to be amended to encourage contagious individuals to remain at home and to ensure compliance with statutory and regulatory requirements in the context of a pandemic. Employee and labor union agreements may need to be amended to permit, among other things, cross-training and succession planning. Contracts with customers and suppliers of both critical inputs and business services must be reviewed to ensure the company has adequately taken into account the potential financial impact of failure to perform. Insurance programs must be reviewed to determine the adequacy of coverage for health and death benefits, as well as the availability of coverage for business losses.

Second, because a pandemic has the potential to impact such a large number of people, even the most robust pandemic plan may not protect the company's employees and their families from illness and/or death and may not prevent breach of contractual obligations or economic losses. Any of these outcomes could result in claims by employees, by customers, or by investors. In any lawsuit, every choice the company made in the planning process will be compared to a "standard of care" drawn from publicly available checklists, guidelines, and government statements. Legal control over the planning process will ensure that proper documentation for choices is developed and preserved and that the legal risks associated with each choice, including the potential use of that choice in future litigation, have been adequately considered.

Conclusion

Pandemic planning is critical to businesses. Potential litigation risks are an important part of that planning. Legal oversight is important to ensure that, as part of the planning process, the company is not creating documents that will become "Exhibit A" in a post-pandemic lawsuit or a set of facts that can be twisted to make the company's good intentions look like callous disregard for the complete impact of the pandemic.

1 Milan Brahmbhatt, World Bank, "Economic Impacts of Avian Influenza Propagation," Speech at the First International Conference on Avian Influenza in Humans (June 29, 2006), available at http://go.worldbank.org/S0VLK88YD0 .

2 The White House, Homeland Security Council, "National Strategy for Pandemic Influenza," (Washington D.C., The White House, Nov. 2005), available at http://www.whitehouse.gov/homeland/nspi.pdf.

3 U.S. Dep't of Labor, OSHA 3323-10N, OSHA Guidance Update on Protecting Employees from Avian Flu (Avian Influenza) Viruses (2006), available at http://www.osha.gov/OshDoc/data_AvianFlu/avian_flu_guidance_english.pdf .

4 U.S. Dep't of Labor, OSHA 3328-05, Pandemic Influenza Preparedness and Response Guidance for Healthcare Workers and Healthcare Employers (2007), available at http://www.osha.gov/Publications/OSHA_pandemic_health.pdf .

5 U.S. Dep't of Labor, OSHA 3327-02N, Guidance on Preparing Workplaces for an Influenza Pandemic (2007 ), available at http://www.osha.gov/Publications/OSHA3327pandemic.pdf .

6 Michael T. Osterholm, "Preparing for the Next Pandemic," Foreign Affairs, Council on Foreign Relations (July/August 2005), available at http://www.foreignaffairs.org/20050701faessay84402/michael-t-osterholm/preparing-for-the-next-pandemic.html.

Tami Lyn Azorsky is a Partner and Co-chair of the litigation department at McKenna Long & Aldridge LLP. She has spent more than twenty years defending companies that face lawsuits arising out of both unforeseen events and normal business practices. As a result of her experience with the allegations and evidence used in litigation, she has developed guidelines and training programs to help companies prevent lawsuits or ensure that they have the evidence for a strong defense if sued.

Please email the author at tazorsky@mckennalong.com with questions about this article.