Fail to prepare for ‘flu threat and you risk a law-suit epidemic…

Businesses with no communicable illness policy and response plan may find themselves on legal life support for years to come, if pandemic influenza becomes a reality, according to Littler Mendelson, the US's largest employment and labor law firm.

The Business Pandemic Influenza Planning Checklist recently released by the Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) presents a ‘laundry list of potential HR legal threats’, says the legal firm. Among the biggest: medical leave, OSHA, medical privacy and wage issues.

"From legal liability and business continuity perspectives, planning in advance of a pandemic ‘flu outbreak is absolutely critical," said Mark Ogden, managing shareholder of Littler's Phoenix office. "Even if the pandemic does not happen, the plans and policies companies develop will benefit them during a variety of crises, including natural disasters and other business interruptions."

Medical leave issues
As much as 40 percent of a company's workforce may be out sick at any given time, according to projections. The Family and Medical Leave Act, which allows employees to take up to 12 weeks of unpaid leave for a serious health condition, applies only in companies with 50 or more employees. Plus, eligible employees must have been with the company for at least one year and worked at least 1,250 hours.

Employers, regardless of how many workers they employ, should develop a communicable disease policy that addresses workers who exceed their available sick days. Other policy considerations: employees afraid to leave their homes, concerned about customer contact or affected by community containment measures and quarantines.

OSHA implications
The Occupational Safety and Health Act says an employer has an obligation to provide a healthy and safe workplace for employees. If an infected employee spreads the disease to other people in the workplace, the employer could potentially face OSHA charges and worker lawsuits, unless preventive measures are taken to minimize the threat.

Medical privacy concerns
Observing the health privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA) could be difficult during a pandemic. The communicable disease policy should outline what illnesses - or exposure to illnesses - an employee must disclose to an employer, including when and how such a disclosure should be made. The policy also should address when an employee should stay at home or will be sent home, and when the employee may return to work.

Wage and hour worries
Wage and hour issues would be even more complicated during a pandemic flu outbreak. Staffing, overtime, sick leave, use of contract employees, re-hiring retirees, as well as, voluntary and mandatory business closings need to be addressed.

Also, business continuity during a pandemic may depend upon cross-training employees, including the transfer of trade secrets to employees unaccustomed to handling such confidential information. Training on the protection of sensitive documents and files should be conducted.

•Date: 15th Dec 2005 • Region: US • Type: Article •Topic: BC general
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