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H5n1 avian flu has spread to three different continents in recent years, wreaking havoc on the bird populations in many of the affected regions and killing at least 141 people. World Health Organization, Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1) Reported to WHO, Aug. 23, 2006. Although the current virus strain is not easily transmittable to humans, employers should not view a potential pandemic as a merely theoretical issue. A recent U.S. government report recommended that “government entities and the private sector plan with the assumption [that] up to 40 percent of their staff may be absent for periods of about two weeks at the height of a[n avian flu] pandemic wave, with lower levels of staff absent for a few weeks on either side of the peak.” National Strategy for Pandemic Influenza: Implementation Plan, Homeland Security Council, May 2006, at 13, www.whitehouse.gov/homeland/pandemic-influenza-implementation.html. The U.S. Chamber of Commerce warns that a pandemic flu could kill more than a half a million people, require 2 million people to be hospitalized and cost an estimated $70 billion to $160 billion. Pandemic Planning, U.S. Chamber of Commerce. For employers, a potential pandemic raises significant employee safety and health issues, as well as the specter of the business-continuity challenges that accompany high employee absenteeism and incapacitation rates. While no one really knows if and when avian flu will become easily transmittable among humans, health authorities generally agree that there is a high likelihood for significant international social disruption if that mutation occurs. Accordingly, just as employers plan for other natural and man-made disasters, employers must prepare for a possible avian flu pandemic. This article will address some of the major legal issues that may be implicated, including occupational safety and health laws and regulations, employee privacy and leave rights, disability discrimination, employers’ duty of care, vaccination issues, contractual obligations and organized labor issues. Finally, the article will address preventative and protective measures that employers should consider. Safety and health laws Federal and state occupational safety and health laws and regulations require employers to protect the safety and health of employees in the workplace. Under the federal Occupational Safety and Health Act, every employer has a general duty to maintain a safe workplace free of recognized hazards that may cause death or serious physical harm to employees. See 29 U.S.C. 654(a). The Occupational Safety and Health Administration (OSHA) must prove the following elements to establish a violation: a condition or activity in the workplace presents a hazard to an employee; the condition or activity is recognized as a hazard; the hazard is causing or is likely to cause death or serious physical harm; and a feasible means exists to eliminate or materially reduce the hazard. See 29 U.S.C. 654(a)(1); Beverly Enterprises Inc., 19 O.S.H. Cas. (BNA) 1161, 1168 (Rev. Comm’n 2000). OSHA’s Guidance for Protecting Workers Against Avian Flu, www.osha.gov/dsg/guidance/ avian-flu.html, sets out specific protective measures for employees in the following higher-risk categories: farm workers/animal handlers; laboratory workers who work with H5N1; medical workers who transport or treat avian flu patients; food handlers; airline flight crews; and travelers to countries that report human or animal cases of H5N1. Similarly, some states, like California, require every employer to provide a safe and healthful place of employment. Calif. Lab. Code � 6400. A California employer must furnish safety devices and adopt safe practices and procedures that are “reasonably adequate” to meet the goals of � 6400. Id. � 6401. An employer cannot require or permit “any employee to go or be in any employment or place of employment which is not safe and healthful.” Id. � 6402. As required by California law, “[n]o employer shall fail or neglect to do any of the following”: “To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe . . . .To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe . . . .To do every other thing reasonably necessary to protect the life, safety, and health of employees.” Id. � 6403. These general requirements would likely apply in an avian flu pandemic, so employers should have at least a basic plan to prevent the transmission of avian flu within the workplace, to train employees on disease-avoidance techniques and to handle employees who become ill at work. California employers must also maintain a written injury and illness prevention program. Avian flu arguably is a “new or previously unrecognized hazard” about which California employers must provide training and instruction as part of such a program. See Calif. Lab. Code � 6401.7(c); Calif. Code Regs. tit. 8, � 3203 (a) (7). Among other disease-control measures, the U.S. government has recently recommended that employers establish employee compensation and sick leave absences “unique to a pandemic” (e.g., nonpunitive, liberal leave), including policies on when a previously ill person is no longer infectious and can return to work. Implementation Plan at 183. Some employers may already have such policies in place. Regardless of an employer’s leave policies, however, employers of more than 50 employees are required to provide their employees with 12 weeks of unpaid leave per year for their own serious health condition, or the serious health condition of a close relative, under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq., and comparable state laws, such as California’s Family Rights Act, Calif. Gov’t Code �� 12945.1-12945.2. Avian flu will likely qualify as a serious health condition, so that employers are required to allow eligible employees to take unpaid leave if they are suffering from avian flu or if they are caring for close relatives (a child, a spouse or parent) with avian flu. Disability discrimination Employees suffering from avian flu or who have been exposed to avian flu may be legally protected under federal and state law as disabled individuals. The Americans With Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and state nondiscrimination laws, such as California’s Fair Employment and Housing Act, Calif. Gov’t Code �� 12900 et seq., forbid discrimination against employees who are disabled or regarded as disabled if they are otherwise qualified to perform the essential functions of their jobs, with or without a reasonable accommodation. The ADA does not require employers to allow contagious employees to continue working (unless the employee is otherwise fit for duty and a reasonable accommodation such as telecommuting exists), but it may forbid employers from firing employees because of their illness, or from discriminating against employees who have recovered. The ADA also requires the employer to take reasonable steps to prevent any discrimination by co-workers. Under the ADA, an employer may require medical examinations so long as they are “job related” and “consistent with business necessity.” 42 U.S.C. 12112(d)(4)(A). Employers should be cautious in requiring such examinations, however, and should not seek any information other than a simple statement regarding the employee’s fitness for duty. If an employee has fallen ill with avian flu and has exposed others in the workplace, the employer arguably has a duty to notify the exposed co-workers, but should do so while protecting the ill employee’s privacy rights as much as possible. Assuming that an effective vaccine were produced in sufficient quantities to be available to all individuals, it is far from clear that employers may legally require their employees to be vaccinated. Any mandatory vaccination policy may also raise issues of reasonable accommodation for employees who have religious objections to such medical treatment. Employers should review and consider revising their employment contracts to include a so-called force majeure provision that would allow the employer to terminate employees, otherwise contractually employed for a set term, in the event that there is a government closure of business or quarantine. Employers should also consider contracting for additional workers through alternate or contingent work force agreements. Employers with a unionized work force may have a duty to bargain with the appropriate labor organizations regarding any changes to the terms and conditions of employment resulting from a pandemic. Employers should also review existing terms and conditions to ensure that there is a disaster management provision (e.g., the ability to retain alternative or temporary labor due to high employee absenteeism). The federal government’s implementation plan includes a number of useful recommendations for employers with regard to drafting and implementing protective and preventative measures. See, e.g., Implementation Plan, Chapter 9 and Appendix. A few of the major recommendations are discussed below. Disease-control methods First, employers should educate their employees about good hand-hygiene methods. Second, employers should evaluate their own particular physical facilities to determine what infection-control supplies are necessary (e.g., soap and water, alcohol-based hand sanitizer, sanitary waste receptacles), and at what stage of a possible pandemic there should be increased cleaning of workspaces and shared equipment. Particular measures should be considered for food handling in employer-run cafeterias and in areas (such as the retail establishment counters) where employees significantly interact with the public. Social distancing methods include any strategy that limits or eliminates the close physical interaction of employees with other people, such as telecommuting, staggering work shifts, canceling or limiting face-to-face meetings and conferences, and not requiring employees to travel for business. Employers’ policies should clarify the various triggers for the social-distancing methods. For example, they should address when international or domestic business travel should be suspended; when the employer should limit large meetings such as conferences; and how the employer should protect employees who, because of their duties, must work with the public or larger groups of people. Under most-but not all-circumstances, an employer may require an employee to travel to a pandemic-affected area, if such travel is required by business necessity. Should the employee refuse to travel, the employer is likely within its rights to terminate or otherwise discipline the employee, but employers should seek legal counsel before taking such a step. Employers with expatriate employees or other employees working away from home should consider what steps they would take to evacuate those employees from affected areas. Quarantines Governmental or employer quarantining of employees who may have been exposed to avian flu potentially raises a variety of legal issues, including disability discrimination issues under the ADA (e.g., employees may argue that they were “regarded as” having a disability and discriminated against on that basis); and wage and hour issues (e.g., if nonexempt employees are quarantined while traveling on business, the employer may be required to pay for much of the time spent in quarantine, including overtime). Exempt employees who are otherwise ready and able to work arguably must be paid their normal salary while in quarantine, regardless of whether they are at home or traveling. To improve employee morale and control the spread of rumors, employers should consider how best to communicate their efforts to prepare for and respond to an avian flu pandemic, including information about quarantines and plant closures. Some examples include instituting regular briefing sessions and communicating via an internal company intranet site. Preparing for an avian flu pandemic is complicated and presents a number of logistical and business-continuity issues for employers. Given the impact of other recent disasters such as Hurricane Katrina and the SARS outbreak, it is clear that employers have no choice but to safeguard their employees and businesses through careful preparation, while weighing the legal issues discussed in this article. The following Web sites offer additional information: the U.S. Department of Health and Human Services pandemic flu site ( www.PandemicFlu.gov); the American Centers for Disease Control and Prevention ( www.cdc.gov); the World Health Organization ( www.who.int); the U.S. Occupational Safety and Health Administration ( www.osha.gov/dsg/guidance/avian-flu.html); and the Wall Street Journal ( www.wsj.com), which offers an avian flu tracker feature summarizing recent news related to the spread of avian flu. Scott H. Dunham is a senior partner in the Los Angeles office of O’Melveny & Myers and chairman of its labor and employment law practice group. He represents employers, with a particular focus on safety and health matters, and he is currently the employer co-chair of the American Bar Association’s Occupational Safety & Health Law Committee. Anne E. Garrett is a labor and employment lawyer and a former counsel to the firm. She represents employers and has worked frequently on occupational safety and health matters.

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