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With concerns about a possible global avian flu pandemic on the rise, U.S. employers, especially those with multinational operations, may need to grapple with complex and unprecedented legal issues raised by the illness. To date, no human influenza pandemic has broken out, and according to recent World Health Organization data, there have been no reports of the avian flu in the United States. Nevertheless, the H5N1 strain of the influenza has reportedly infected more than 200 individuals worldwide and has been found in birds that can infect humans. And concerns about possible mutations of the virus have been widely reported. Federal and state governments have begun to prepare for this potential influenza pandemic. Employers also should begin planning to avoid problems in a flu outbreak. Some of this planning will highlight managerial, not purely legal, responses. Employers may wish to encourage employees to obtain flu vaccinations, plan how to respond to employee inquiries about the flu, and consider cross-training employees to handle essential functions in case of significant work absences. Employers will also face a delicate balancing act in addressing a number of legal issues. These include the constraints of medical-privacy laws, the problem of employees who exceed allotted sick leave or who refuse to report to work because they fear contracting the flu, and the potential conflict between disability rights and obligations to maintain a safe work environment. Fortunately, careful planning can help reduce the risk of employer liability arising from a possible pandemic. UP TO DATE Businesses should begin with the information available from various federal and state agencies. Some of this material will help guide employers in developing their own procedures. And some of it will help them allay potential panic or unwarranted responses in their work forces. For example, in the May 2006 National Strategy for Pandemic Influenza Implementation Plan, the Department of Health and Human Services has provided a brief checklist of issues for companies to address. This checklist, which is available at www.pandemicflu.gov, includes items such as identifying essential work functions, developing lines of communication for flu outbreaks, and ensuring medical care for affected employees. On the same site, the Centers for Disease Control and Prevention set forth substantial avian flu information, which employers should periodically consult. Travel alerts and advisories are also available. To help disseminate such information, companies should consider designating a manager to be a resource for their employees on this topic. Ensuring that accurate information is available to management and employees will not only calm fears and allow personnel to focus on business, but also reduce other risks of liability. Sometimes legal prevention begins with scientific knowledge. IMPLEMENTING A RESPONSE Once that information is disseminated, the task remains to implement policies that comply with employment laws. In particular, keep the following legal considerations in mind: Americans With Disabilities Act and state-law discrimination claims. Discrimination issues may arise under the ADA or various state laws if employers pursue medical testing in too aggressive a manner. Similarly, employer policies requiring medical clearances from employees returning from travel may also create potential liability. Under the ADA, disability-related inquiries or medical examinations are permissible only when job-related and consistent with a business necessity. For that reason, employers should carefully consider policies requiring return-to-work certifications or other medical examinations of potentially affected employees — that is, people who may have contracted the flu virus while traveling. In particular, mandatory testing of asymptomatic individuals may create a risk of liability. Occupational Safety and Health Act claims. The general-duty clause of the 1970 act establishing the Occupational Safety and Health Administration requires that employers provide employees with a workplace free from “recognized hazards” that cause or are likely to cause death or serious physical harm. OSHA has recognized that avian flu is a potential health hazard and has published guidance for various industries on its Web site, including advice for agricultural workers, flight attendants, and business travelers. To reduce the risk of potential OSHA claims, employers should review OSHA and CDC advisories and take reasonable precautions based on this information to prevent the spread of illness . Moreover, if employees complain about the risk of contracting the flu at work, employers should recognize that such complaints about workplace safety may be protected from retaliation under the Occupational Safety and Health Act. In other words, employers should try to calm, not quash, employees’ concerns. At the same time, when considering how to respond to employee concerns, employers must still appropriately protect employee privacy and abide by the ADA limitations on medical examinations. • Wage-and-hour laws. Employers should remain consistent with federal and state wage-and-hour requirements if they require employees to remain at home because of flu-related concerns or take action in response to employees who refuse to work because of flu-related concerns. Requirements vary depending on whether an employee is nonexempt or exempt under the federal Fair Labor Standards Act. Employers providing paid leave should do so in a nondiscriminatory manner. Family and Medical Leave Act requirements. Employees exhibiting flu symptoms or those who have a child, spouse, or parent with flu symptoms may be eligible for leave under the Family and Medical Leave Act of 1993 or state law equivalents. Employers should consider how to handle a situation where an affected employee has exceeded permitted leave or is not eligible for FMLA leave. Also, whether to designate leave as under the FMLA — especially if it may be unclear whether an employee is affected by a flu virus or merely avoiding the workplace — may require case-by-case analysis, which must be performed in a nondiscriminatory manner. • Race and national origin discrimination. Because the avian flu is now associated in people’s minds with Asian countries, employers should be especially careful to ensure that employees of Asian ethnicity are not targeted by flu-related policies or practices because of their ethnicity. • Medical-privacy requirements. Employers seeking medical certifications from employees must adhere to the applicable confidentiality requirements of the ADA and, possibly, privacy regulations under the Health Insurance Portability and Accountability Act of 1996. Employers may need to provide physicians with authorizations from their employees in order to obtain return-to-work medical certifications or to confirm eligibility for medical leave. All communications relating to these tests must be kept in confidential files separate from other personnel records. But employers should also note that medical disclosures required by law, such as reports to governmental agencies that may be monitoring the flu, are generally permissible under HIPAA. • Union contracts. Unionized workplaces may already have policies, such as sick-leave provisions, that will address flu concerns in some fashion under their collective-bargaining agreements. Bargaining rights may be triggered if employers with unionized work forces attempt to modify those policies. • Workers’ compensation and short-term disability policies. Employees may be eligible for workers’ compensation if they become ill while taking business trips or otherwise performing company business and the illness is of sufficient severity to trigger coverage under the applicable state law. Employers should check whether their workers’-compensation insurers need to be notified if an employee reports a possible avian flu case. Short-term disability insurers may permit claims for flu-related leaves as well, depending on the symptoms and duration of the illness. Employers should confirm whether and under what conditions benefits may be available. • Foreign legal requirements. Multinational employers must ensure that policies created for their American work force do not clash with legal requirements in other countries. For example, in European nations with work councils, employers may be obligated to consult with employee representatives before any flu-response policy can be put into effect. In countries where a flu pandemic is not perceived as an acute threat to public health, employers will likely encounter resistance, both legal and cultural, to a U.S.-centric “one-size-fits-all” policy. On the other hand, employers also must be mindful of the mandatory-reporting obligations that exist in certain affected countries, such as China, Thailand, and Vietnam. Also, employers need to be mindful of how foreign data-privacy requirements, such as European Union obligations, may affect response programs or other internal communications relating to affected employees. Multinational companies should have counsel audit their current policies and practices on a global basis to ensure adequate advance preparation and coordination and to avoid having to address these issues in the midst of a crisis. Given all of the uncertainties surrounding the threat of an avian flu pandemic, employers need to develop a response that is both medically informed and legally sophisticated. By following CDC guidelines and adeptly handling legal constraints, employers can allay workplace concerns and protect the health of their business.
Brian Arbetter is a partner and Peter Gillespie is an associate in the Chicago office of Baker & McKenzie, where they specialize in employment law.

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