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The news on the swine flu that began in Mexico changes hourly, it seems, as cases are confirmed in Texas and elsewhere, school districts cancel classes, people show up for work wearing medical masks, and travelers cancel business and education trips to Mexico.
At a time when Texas law students face a bleak future due to employment cuts at firms, a group of students from Texas Tech University School of Law in Lubbock may not be able to go to Mexico as planned next month for a four-week study program at the University of Guanajuato Law School. Jorge Ramirez, a professor at the law school who also is director of international programs, says the school will wait a week or so before deciding whether the 20 law students will get to go to the Summer Law Institute or have to stay home because of the flu.
"We're definitely closely watching the situation. We're trying to be considerate of the concerns of not only the students, but their parents," Ramirez says, noting that the law school has participated in the program since 1992.
Doctors are on the front line in the battle against the flu virus, but plenty of lawyers in Texas were wrestling with related legal issues last week as news reports about the outbreak of swine flu H1N1 vied for the public's attention with the NBA playoffs and the financial crisis. The effects of the flu are wide-ranging: Immigration lawyers are dealing with clients upset that U.S. Consulates throughout Mexico suspended all non-essential services; attorneys with Mexico offices of BigTex firms are toiling away without air conditioning in 80-degree heat in an effort to prevent the flu from spreading; labor and employment lawyers are fielding questions from clients wondering how they should deal with illness in the workplace; and lawyers who live near the Texas-Mexico border are adjusting their schedules to avoid travel to Mexico.
The U.S. Department of State notes on its Web site that on April 30 the government of Mexico expanded the nationwide "closure of federal government activities, and urged the closure nationwide of all establishments where large numbers of the public gather, including restaurants, bars, discos, night clubs, cinemas, movie theaters, theaters, gyms, and convention centers." Those measures are in effect until May 6.
The situation is so dire in Mexico City that Texas lawyers such as Julian Nihill, managing partner of Strasburger & Price's office there, wore a medical mask as he flew to Dallas on April 28 to avoid getting stuck in Mexico if the United States closed the border to prevent the spread of the flu. Nihill says lawyering in Mexico City had come to a standstill, for the moment anyway, with most meetings canceled as a result of the flu outbreak.
"It is becoming ineffective to be there," Nihill says.
But as of Texas Lawyer 'spresstime on April 30, Strasburger had not closed its Mexico City office or told lawyers and staff to stay home. "We are telling them to stay home if they have colds," Nihill says.
In addition to Strasburger, three other large Texas firms with offices in Mexico City have taken steps to protect the health of their lawyers, staff and clients.
Alejandro Ortiz, a partner in the Dallas office of Gardere, says the firm's Mexico City office closed on April 29 and will remain closed at least until May 6. Prior to the closing, the firm, which does business under the name Gardere, Arena y Asociados, S.C., in Mexico, provided medical face masks and hand sanitizer for its employees, along with individual water bottles, disposable cups and paper towels to reduce spreading germs. The firm also turned off the air conditioning to try to cut off the spread of the illness, Ortiz says.
With the office closed, the firm created back-up documents so lawyers in the United States can fill in for the lawyers in Mexico if the border closes and they can't travel to the United States for meetings.
At Dallas-based Thompson & Knight, administrative partner Larry Hicks says the firm has closed offices in Mexico City and Monterrey until May 6.
Dallas-based Haynes and Boone's Mexico City office is located just a few blocks away from the Thompson & Knight office. William "Hunt" Buckley, a partner in that office who has been there since 2000, says the firm is giving lawyers and staff the option to stay home.
"We are being flexible," Buckley says.
Most of the transactional partners are working in the office, but many litigators are staying home because the courts in Mexico City are closed until May 6 as a result of the flu.
Border Business
Michael McQueen, managing partner of Kemp Smith in El Paso, which is just across the border from Juarez, says he used to go to Mexico to play golf. But even before the flu started spreading, McQueen says he and most of the other lawyers at the 42-lawyer firm stopped going to Mexico because of the drug cartel violence in Juarez.
"The violence has clearly been a deterrent," he says. "Frankly if you can avoid going over there, there's no reason to go over there right now."
The swine flu didn't stop Arturo Torres and his wife from going to Reynosa on April 26 to have lunch with a friend. And Torres, a partner in Torres, Cantu & Aliseda in McAllen, says four lawyers from the firm's office in Texas were in Mexico on business last week — one in Cancun, one in Victoria and two in Monterrey.
"I've asked them all to use normal caution: Stay out of crowded places and stay in the hotel and have their meetings in the hotel and come back," Torres says.
Torres, who has represented clients in Mexico for decades from a home base in the Rio Grande Valley, says lawyers from his firm mainly operate in the northern portion of Mexico. Because it's far from Mexico City, "nobody up here in the north is spending too much time worrying" about the swine flu.
Torres, whose firm has seven lawyers in the United States and 14 based in Monterrey and Reynosa, represents U.S. and foreign companies doing business in Mexico. Clients haven't called the firm in recent days with questions about swine flu and how it affects their business. However, they have been calling for a while with questions about security in Mexico, due to drug-related violence on the border.
"For the last year, the kind of calls we've been getting have been more security issues because of what's going on for Mexico," he says, noting that "things have quieted down substantially" since the Mexican government sent its army to the northern Mexican region.
Mayer Brown partner Stephen Selsberg travels frequently to Mexico because he is the go-to U.S. counsel for the business empire of Carlos Slim Helu, the Mexican billionaire who is one of the richest men in the world. Selsberg also represents a number of other Mexican companies. [ See "Slim Chance," Texas Lawyer , Sept. 24, 2007, page 1. ]
Selsberg, who flew to Mexico City on April 20 to meet with a prospective client and returned two days later, says he heard nothing during that trip about swine flu concerns. Selsberg says he saw people wearing face masks at the Mexico City airport before leaving to return to Houston, but he didn't know why. When he got back to the United States he was surprised to find out about the spread of the virulent flu in Mexico City.
"By then . . . the flu was already an epidemic in Mexico City, but mostly they were talking about Obama's visit," he says. President Barack Obama visited Mexico on April 16.
Selsberg says that even if he had known about the flu, he would have traveled to Mexico City because his meeting was important and resulted in America's Mining Corp., a subsidiary of Grupo Mexico, hiring his firm for the appeal in Asarco LLC, et al. v. Americas Mining Corp., which was tried in U.S. District Judge Andrew Hanen's court in Brownsville.
"I had a very important reason to go . . . plus I'm kind of a germaphobe. I take a lot of precautions, I bring the hand sanitizer and I'm just careful," he says, noting that he still would not hesitate to go to Mexico City if work required it.
Jorge Garcia, a shareholder in Martin & Drought in San Antonio whose firm represents clients in Mexico, says he and clients have canceled meetings in Mexico since the swine flu reports began. He's watching the situation day-by-day, and he doesn't believe the flu will have any long-term effect on business between the United States and Mexico.
"This is going to come and go, I think," Garcia says.
Garcia says he usually travels to Mexico twice a month on business, but on April 28, for instance, a meeting in Mexico City was canceled by all participants. He says he definitely wouldn't go to Mexico City right now but might consider somewhere else in Mexico. He did spend April 21 through April 24 in Reynosa on business.
Violence has been keeping some clients out of Mexico for a while, he says. "I've been talking to a lot of these American officers and heads of companies. They weren't going to Mexico for other reasons — the security reasons, the violence across the border," he says.
Travel Restrictions and Leave
As news of the swine flu virus spread, labor and employment lawyers in Texas started to receive calls from employer-clients in Texas and elsewhere seeking advice on what to do if someone at their workplaces gets the flu or comes down with flu-like symptoms.
The lawyers have specific advice for their clients, but Teresa Valderrama, a partner in Jackson Lewis who is resident manager of the Houston office, says she advises clients to remain calm.
"One of the things people need to do is sit back and take a deep breath . . . and handle it appropriately from a personnel perspective. It's not the kind of thing employers need to panic over," she says.
Valderrama says she's telling clients to follow news coverage and to ask all employees to report to the human resources department if they are experiencing flu-like symptoms.
"HR may want to be more aggressive than usual in providing some sort of paid time off for an employee. The truth is, if someone is experiencing flu-like symptoms, whether it's swine flu or anything else, they shouldn't be at work," she says.
Bob Sheeder, a partner in Bracewell & Giuliani in Dallas, says clients have asked questions about what to do if anemployee gets the flu but doesn't have any leave time left, as well as questions about how to follow Health Insurance Privacy and Portability Act (HIPPA) privacy regulations while also protecting the workplace. Those questions are best answered on a case-by-case basis, he says. However, Sheeder says he believes employers may be able to release limited information about the health of an employee under an exception to HIPPA for issues that constitute a direct public health threat.
"You still have to be very careful about it, very cautious about whom you share the information with, what you share," he says.
Donna McElroy, a shareholder in Cox Smith Matthews in San Antonio who is head of the employment and employer rights practice group, says most questions from her firm's clients about swine flu relate to travel restrictions and leave.
She says some of her employer-clients have wanted to know if they can ask their employees to avoid personal travel; she thinks employers can during a limited time period.
"There are situations where you can tell employees, if you are going to travel into that country, you can't work here," she says.
Like other labor and employment lawyers, she is receiving questions about what to do if an employee is ill and doesn't have any leave time left. She suggests leniency. "You've got to extend some grace to the employee, because you don't want them to show up at the workplace with the flu," she says.
Katherine Flanagan, managing shareholder of labor and employment firm Littler Mendelson in Houston, says her employer-clients also have questions about travel. She tells them they should follow the Centers for Disease Control and Prevention (CDC) recommendation to avoid non-essential travel to Mexico.
David Barron, a partner in Epstein Becker Green Wickliff & Hall in Houston, says last week he, too, was busy with calls from employer-clients wondering if they can restrict employees from traveling to Mexico for personal reasons or require employees to get tested for the flu.
His most interesting call came from the owner of a Mexican restaurant who was taken aback when an employee showed up for work wearing a medical mask. The restaurant owner didn't want the employee wearing the mask at work. Barron's advice: Employees have to follow a dress code.
School Daze
Last week, Richard Abernathy and Mari McGowan, shareholders in McKinney's Abernathy, Roeder, Boyd & Joplin, spent hours on the telephone with clients questioning whether they should close their schools — "breeding grounds" for infectious diseases. Abernathy, Roeder does legal work for 26 Texas school districts.
"It's all around us, but none of our clients have done anything yet," McGowan said on April 30.
At the Richardson Independent School District, general counsel Mia Martin says the superintendent closed one elementary school on April 28 after a reported probable case of the flu. Martin says closures create legal questions, such as whether teachers should be paid for the unplanned time off. She says she and the superintendant are recommending to school district trustees that employees be paid. She also is working with the Texas Education Agency (TEA) to determine when and if missed Texas Assessment of Knowledge and Skills (TAKS) tests will be rescheduled, and if students whose schools close will have to make up the missed school days.
At the Fort Worth Independent School District, chief legal officer Bertha Bailey Whatley says the decision to close all of its 137 schools and 27 special campuses from April 30 and until, most likely, May 11, was based on recommendations from the Tarrant County Health Department. Whatley says one confirmed and three probable cases of students sick with swine flu led the Fort Worth ISD administrators to close the schools.
She, too, is wrestling with employee pay issues and talking to the TEA about TAKS test rescheduling.
As of presstime, five Texas law schools, which mostly finish the academic year in mid-May, had not canceled classes as a result of the flu outbreak. Those schools include Baylor University School of Law in Waco, South Texas College of Law in Houston, Southern Methodist University Dedman School of Law, Texas Wesleyan University School of Law in Fort Worth and University of Houston Law Center.
Texas Wesleyan spokeswoman Abby Dozier says: "We are not closing the law school. We are, however, encouraging students to study for finals at home to whatever extent possible, and take all the necessary precautions to protect themselves."
Visa Concerns
Kathleen C. Walker, a partner in El Paso's Brown McCarroll who practices immigration law, says for many of her clients life has gotten pretty confusing with the outbreak. The biggest monkey wrench was the decision by the U.S. Embassy in Mexico City and U.S. Consulates throughout Mexico to suspend all non-essential services to the public from April 27 until May 6. The embassy's visa unit suspended all visa appointments until May 6, she says.
"It's a real problem for many of my clients," she says, who don't know whether previously imposed visa deadlines apply or if they will be allowed waivers.
Fernando Dubove, a Dallas solo who also practices in Tyler, says he is telling clients seeking immigration visas to hold off going to Mexico for interviews with the U.S. Consulate General, because they may get stuck there.
"We will just send a letter and get it rescheduled," he says.
Dubove says his clients who live in the United States without documentation but who are seeking immigration visas, must go to Juarez, Mexico, for visa interviews held at the U.S. Consulate General. With interviews suspended, if they go to Juarez they will not be able to come back to the United States, he says, so he is advising them to wait. He says in a typical week, he has about five clients who have such interviews scheduled.
Notes Dubove, "Multiply that by all the immigration lawyers in the state and you can see how many people will be impacted."
