PHOENIX, Dec. 13 – LAWFUEL – The Law News Network — Businesses with no communicable illness policy and response plan may find themselves on legal life support for years to come, if the bird flu pandemic develops as predicted. Attorneys with the Phoenix office of Littler Mendelson, the nation’s largest employment and labor
law firm, encourage employers in Arizona to start planning now to head off
potential flu-related legal problems, including worker lawsuits.
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. Among the biggest: medical leave, OSHA, medical privacy and wage
“From legal liability and business continuity perspectives, planning in
advance of an Avian 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
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.
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 bird flu
outbreak. Staffing, overtime, sick leave, use of contract employees, re-
hiring retirees, as well as, voluntary and mandatory business closings need to
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.
Creating or updating an existing communicable illness policy can help
businesses reduce their exposure to charges of disability discrimination, wage
and hour violations and OSHA noncompliance, should the predicted bird flu
outbreak occur in the United States. In addition to protecting employees and
preventing legal problems, taking action now will put companies in a better
position to survive anticipated business interruptions.