posted on Monday, June 12, 2006 2:21 PM
by
Rod Satterwhite
Jumping on the Bird Flu Bandwagon
There’s a lot of attention being paid to avian influenza (aka “bird flu”) these days, and as with most issues, there are two sides to the pancake. More than one of my colleagues has chuckled wisely, remembering fondly the days when we stockpiled food and water in anticipation of the imminent Y2K (OK. We didn’t stockpile much of anything, but I knew people who did.) Last month, the ABC docudrama on the subject (“Fatal Contact: Bird Flu in America”) didn’t exactly inject a huge amount of credibility into the concerns, either.
Nevertheless, others have genuine concerns. The World Health Organization, for example, is quoting estimates of 2 million to 7.4 million deaths worldwide. The U.S. Chamber of Commerce is advising employers to be prepared for a potential 40% absentee rate among employees for a prolonged period of time. Granted, a lot’s got to happen before there is a true pandemic: mutating viruses and human to human transmission and other such subjects that I went to law school to avoid.
However, whether you “believe” in the bird flu (in the Tooth Fairy sense) or not, the subject certainly raises questions and issues for employers in any disaster preparedness efforts. Whether it be bird flu, terrorism or hurricane, many employers are (or should be) developing emergency plans to address such things. More and more, we as employment lawyers are being asked to advise employers on the legal implications of such plans and scenarios. Some issues to consider:
ADA Implications – if infection is considered a disability, and under the worst-case scenario a fatal disease would surely qualify, then what accommodations should employers be prepared to consider? On the other hand, at what point is an infected employee considered a direct threat to himself or others, such that an employer could require testing, or even mandatory inoculation?
Leaves of Absence – federal law permits employees who work for employers with 50 or more employees up to 12 weeks of leave under the FMLA. Must an employer provide leave when a huge percentage of its workforce is either infected, or needs to care for a spouse, parent or child who is infected?
Duty to maintain a safe workplace – OSHA requires employers to adhere to a general duty to take reasonable steps to maintain a safe workplace. In light of all this hype, what does this really mean? Masks? Gloves? Purell in every cubicle?
Negligent retention – what about the employer who waits too long to send home a sick employee, and in turn causes others to become needlessly infected? Is there any liability there?
There aren't necessarily bright line answers to these questions, but that doesn’t mean they shouldn’t be asked. While the first priority is of course mitigating the impact of the disaster, crisis management must be done legally, and the first step is thinking through some of these issues. Now Lou thinks all this may be moot, because he predicts public health officials and pronouncements will trump all private employer policies anyway. He may be right, but regardless of the outcome of this particular crisis du jour, I expect we haven’t seen the last of the disaster planning efforts in our lifetime.
What’s your company doing in anticipation of possible avian flu outbreaks? Thinking, planning, or chuckling about the resemblance to Y2K?