Amidst growing concerns of a pandemic, the World Health Organization elevated the Pandemic Threat Level to 5 signifying a worsening of conditions. Phase 5 is characterized by verified human-to-human transmission of an animal or human-animal influenza reassorted virus, which is adept to spreading between humans and has spread into at least 2 countries. State and federal officials caution that while the change to a higher phase of pandemic alert indicates the likelihood of a pandemic has increased, a pandemic is not inevitable.

As of April 29, 2009, the United States Government has reported 91 laboratory confirmed human cases of swine influenza A(H1N1), with 1 fatality. The CDC and state public and animal health authorities are currently investigating cases of swine flu in humans in Arizona, California, Indiana, Kansas, Massachusetts, Michigan, Nevada, New York City, Ohio, and Texas. Some of the U.S. cases have been linked to travel to Mexico.

Given the widespread presence of the virus, experts agree containment of the outbreak is not feasible. The current focus should be on mitigation measures. At this time, CDC recommends that U.S. travelers avoid all nonessential travel to Mexico.The United States is not conducting enhanced entry screening of passengers arriving from Mexico at this time, nor is the United States conducting exit screening of passengers departing for Mexico. However, people who are ill should delay international travel, and people developing symptoms following international travel should seek medical attention.

The public should remain calm and take common sense precautions. No risk of infection from this virus exists from consuming well-cooked pork and pork products. Individuals are advised to wash hands after coughing or sneezing, using soap and water or an alcohol-based hand cleaner (with at least 60% alcohol) when soap and water are not available. Individuals should seek medical attention if they develop any symptoms of influenza-like illness. Individuals should cover their nose and mouth with a tissue when coughing or sneezing. Avoiding close contact with sick people minimizes risk. A sick individual should stay home from work or school and limit contact with others to keep from infecting them. The CDC recommends self-isolation for 7 days, or for 24 hours after symptoms subside, whichever is longer. Similarly, a person returning from an affected area should closely monitor his or her health for 7 days.If he or she becomes ill with fever and other symptoms of swine flu, like cough and sore throat and possibly vomiting and diarrhea during this period, he or she should seek immediate medical attention.

Employers may face significant issues as the outbreak continues. As a precautionary measure, employers should inform employees of the daily hygiene habits they should observe to prevent the spread of the virus. When employees are absent for the swine flu, employers may be tempted to require all returning employees to provide documents from their health care providers stating that the employee is no longer ill or contagious. If an employee takes Family and Medical Leave Act (“FMLA”) leave for swine flu, a certification stating the employee is able to resume work and perform his/her essential job functions may be required by the employer’s FMLA policy.[1] 29 CFR § 825.312. However, what steps may an employer take when an employee who was absent with swine flu symptoms, but not on FMLA leave, attempts to return to work?

Under the Americans with Disabilities Act (“ADA”), employers may require employees to undergo medical examinations[2] that are job-related and consistent with business necessity. 29 CFR § 1630.14 (c). Such exams are allowed when the employer has a reasonable belief, based on objective evidence, that the employee’s medical condition: (1) impairs his/her ability to perform his/her essential job functions with or without a reasonable accommodation; or (2) poses a direct threat to safety in the workplace. “Direct threat” means a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 CFR § 1630.2(r). Whether an employee poses a direct threat to himself/herself or others must be based on an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. Id. Generalized fears about the risks of the employment environment are insufficient to establish that an employee will pose a direct threat. 29 CFR § 1630, App. In other words, before requiring medical examinations, employers must evaluate whether that individual employee’s present health condition poses substantial harm to others; it is not sufficient for employers merely to rely on panic or fear of a pandemic. Rather than risk violating the ADA’s regulations regarding medical examinations and/or risk returning contagious employees to work, employers should consider revising their attendance or sick leave policies to encourage employees to remain home for the CDC’s recommended self-isolation period. Other options include flexible work arrangements, such as telecommuting.

As the outbreak continues, employers should also stay up to date on the areas affected by the swine flu and postpone employees’ nonessential travel to such areas.[3] However, if employees must travel to such areas, they should be strongly encouraged to maintain good personal hygiene, wash their hands frequently, avoid touching the face, cover coughs and sneezes, consider wearing a mask, and avoid obviously sick people. While employers may wish to require all employees returning from an affected area to undergo a medical examination, such an examination would likely violate the ADA, especially if the employee is not exhibiting any symptoms.

In sum, the virus poses a potentially grave new threat to the already stressed US healthcare system and businesses alike. During this time of heightened preparedness, Fulbright recommends taking advantage of this time to prepare for potential legal issues:

• Begin Continuity of Operations Planning
• Employers should review safety practice and policies
• Review attendance and leave policies and anticipate significant changes
• Review vendor contracts with suppliers and force majeure provisions
• Consider alternate ways to insure risk
• Evaluate quarantine laws and how they apply in a public health emergency
• Review medical volunteer licensure, liability, and compensation laws for in-state, out-of-state, and returning retired and non-medical volunteers
• Familiarize oneself with workers’ compensation laws as they apply to healthcare workers and workers who provide essential services
• Consider reimbursement for workers placed in isolation or quarantine (if not addressed in sick leave policies)
• Consider potential legal liability of implementing “working” quarantine for essential hospital service personnel
• Plan for liability/immunity for volunteers providing assistance or services to persons in isolation/quarantine
• Understand reimbursement by federal payors for emergency services provided
• Understand HIPAA compliant exchange of protected health information

The Occupational Safety and Health Administration (“OSHA”) recommends the following checklist to prepare for a pandemic:

http://www.pandemicflu.gov/plan/businesschecklist.html

This is not the time to panic; rather, it is the time to be prepared. Employers should be prepared to educate their employees on how to prevent the spread of swine flu, to be flexible in attendance policies and allow infected individuals to remain at home while they are contagious, and to have a plan to maintain business operations should a pandemic occur.

Resources:
www.fulbright.com
www.cdc.gov
www.who.int

This article was prepared by Jaclyn A. Hermes (jhermes@fulbright.com or 512 536 2465) from Fulbright's Labor and Employment Law Practice Group and Aashish Shah, M.D. from Fulbright's Health Care Practice Group.