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Planning for a pandemic flu: Is your organization prepared?

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in Employment Law,FMLA Guidelines,HR Management,Human Resources

After preparing for Y2K, anthrax and hurricanes, HR and legal professionals must now turn their attention to pandemic planning.

Media attention and public interest are intense. As U.S. Health and Human Services’ Secretary Mike Leavitt observed recently, “We’re at a greater risk of pandemic than at any time in decades. We are overdue, and we’re under-prepared.”

Background on avian flu

Various types of pandemic flu could hit, but the strain of influenza at the heart of the planning is Avian Influenza A (or H5N1).

What’s the big deal? Avian flu is a type of flu, right? The “big deal” is that this flu is deadly. So far, there’s a 50 percent mortality rate and any pandemic is expected to overwhelm the health system, causing severe economic and social disruption.

The H5N1 strain of avian flu was first detected in southern China in 1997. Although the virus is carried in wild birds and poultry, it can be transmitted to humans by direct contact with infected birds and poultry.

According to the Centers for Disease Control and Prevention, there have been a few cases of “probable” person-to-person spread.

As of February, 272 cases of H5N1 influenza had been reported.

OSHA issues

Under the Occupational Safety and Health Act, employers are required to protect employees against “recognized hazards” to safety or health that may cause serious injury or death. The greater the hazard, the greater the duty for the employer.

An employer’s duty now could become much more pressing a year from now if the virus grows more prevalent in the United States or shows a greater ability to be transmitted between humans. Prudent employers should monitor the guidance from the Occupational Safety and Health Administration (OSHA) on avian flu, as it is the best indicator of what OSHA thinks a reasonably prudent employer should do to protect its employees from recognized hazards. OSHA has issued guidance for protecting workers against avian flu (www.osha.gov/dsg/guidance/avian-flu.html) and specific guidance for protection of specific groups of workers (such as poultry employees).

Other legal issues

The avian flu risk raises other legal issues. For example, state workers’ compensation laws cover illnesses that are contracted in the course of employment. In the event of a pandemic, how a worker contracted the virus will be an important question.

Moreover, privacy laws protect workers from undue intrusion into their medical information. Generally, employers are entitled to discover only information that bears on the employee’s ability to perform essential job functions or that could increase the risk to others.

Avian flu will also most likely qualify as a “serious health condition,” entitling an eligible employee to protected leave under the FMLA.

Finally, avian flu creates issues under the National Labor Relations Act. Workers who refuse to come to work may be engaged in protected concerted activity. 

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