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Public health crises can force employers to react quickly and without clear guidance about their legal rights and obligations. In the 1980s, it was the outbreak of AIDS. In 2003, the onset of SARS led employers to consider quarantines and mandatory leaves of absence for employees who visited affected areas. The looming threat today is avian influenza, caused by the so-called H5N1 virus. Predictions about the effect of an avian flu pandemic in the United States are horrible to contemplate: tens or hundreds of thousands of deaths, widespread illness, and untold economic dislocation. According to a Bush administration draft report disclosed in early May, as much as 40 percent of the U.S. workforce could miss work as a result of a pandemic. For many public health officials and other observers, the question seems to be not if a pandemic (avian flu or otherwise) will strike, but when. Fortunately, unlike with past crises, U.S. employers have advance warning and can prepare. Unfortunately, the recommendations thus far from the Centers for Disease Control and other authorities consist of little more than commonsense advice, such as avoiding close contact with colleagues and frequent hand washing. The U.S. Department of Labor’s guidance on avian flu, osha.gov/dsg/guidance/avian-flu.html, is limited to high-risk workplaces, such as poultry farms. Similarly, employment laws provide general guidance rather than concrete answers. Nonetheless, the 2003 experience with SARS provides a good road map for employers preparing for the current threat. Like avian flu, that disease originated in Asia and was believed to be transmitted through casual contact. Many of the steps that U.S. employers (particularly those with substantial operations in Asia and Canada) took in response to SARS should be revisited now so that employers can react quickly when avian flu strikes. Such steps include: Restrict business travel: Where consistent with business needs, employers should curtail or eliminate employee travel to high-risk areas, or require pre-clearance of such travel with an executive responsible for monitoring corporate planning for a pandemic. Repatriation: Where American employees are stationed in affected areas, they can be recalled to the United States, subject to applicable immigration requirements. Forced leaves: After employees return from a visit to an identified country or region, whether on business or personal travel, employers can require them to (1) remain away from the workplace for a specified incubation period and (2) obtain medical clearance before returning. In the case of SARS, the recognized incubation period was ten days. Because avian flu has not yet struck many humans, there is no medical consensus on the time between exposure and manifestation of symptoms. Payment during leave: As a rule, any posttravel period of mandatory leave should be at full pay in order to minimize the risk of wage-based claims under state law and to protect the status of employees classified as exempt from federal overtime requirements. Employers should maximize the opportunities for telecommuting and other forms of remote work so employees can be productive during this forced absence. Refusals to work: When an employee who was exposed to or infected with avian flu returns to the office, will other employees have the right to refuse to work or interact with him? Labor Department regulations provide that when an employee is “confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace,” he may be permitted under certain circumstances to “refuse in good faith to expose himself to the dangerous condition.” If, however, employers take reasonable steps to ensure that employees who have been or likely were exposed to the virus remain away from work, and receive medical clearance before being allowed to return, such actions by colleagues would likely be unreasonable. Refusals to travel: Should employees be permitted, even today, before widespread infection of avian flu in humans, to refuse to travel to Asia or other potentially affected areas? At this juncture, the answer is no. The CDC has not to date called for restrictions on travel by U.S. employees to those countries. Prophylactic programs: There is currently no vaccine for H5N1, but employers should be prepared to make such a vaccine available to employees promptly if it is developed. It is unlikely that employers will be able to require that employees be vaccinated. But if they offer vaccination programs, they should get appropriate waivers in case employees suffer side effects or contract the flu notwithstanding the vaccine. Protect employee privacy: While the Health Insurance Portability and Accountability Act generally restricts an employer’s ability to disclose medical information about its employees, it provides an exception where disclosure is necessary to prevent a serious threat to health and safety or is otherwise required by law. Don’t discriminate or retaliate: This seems self-evident in 2006, but some employers learned the hard way after 9/11. Emergent crises do not suspend the application of basic rules of nondiscrimination in the workplace. Employers should not make generalizations about which groups of employees have or will become infected if a pandemic occurs. Similarly, although an outbreak of avian flu could cause unprecedented demands on employer-sponsored health insurance plans, ERISA prohibits employers from taking adverse action against employees because they have exercised or may exercise their rights under such plans, such as making claims for benefits. As employers consider these options, they must also keep in mind the wide array of other federal, state, and local employment statutes and regulations that might apply if avian flu broke out here. For example, the Occupational Safety and Health Act’s “general duty” clause requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Family and Medical Leave Act requires certain employers to provide up to 12 weeks of unpaid leave for employees with a “serious health condition” who are unable to work, or to employees who are needed to care for an immediate family member. Some states have laws that provide for more generous periods of leave or broader eligibility criteria. Laws governing disabled employees may also come into play. Under the Americans with Disabilities Act, temporary conditions do not generally rise to the level of a “disability.” If an employee with avian flu is likely to recover and will be incapacitated for a finite period, even for several months, he probably will not be deemed to be disabled. He therefore will not be covered by the act’s nondiscrimination and “reasonable accommodation” requirements. In contrast to the ADA, however, many state and local laws regarding disability discrimination have broader coverage and more imposing obligations. For example, the New York State Human Rights Law defines a “disability” to include any “medical impairment” that “prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.” The definition of “disability” under California law is comparably broad. This guidance is obviously no substitute for the individualized assessments of each employee’s facts and circumstances that will be necessary if a pandemic strikes. In the event of a massive U.S. outbreak, it is also likely that Congress and state legislatures would pass emergency legislation that would alter or clarify many existing obligations, or impose new ones. Until then, employers � particularly those with substantial multinational operations � must begin preparing for an outbreak in order to minimize the risks to their employees and the potential disruption of their operations. Robert S. Whitman is a partner in the employment law department at Orrick, Herrington & Sutcliffe.

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