What, Exactly, Is the “Bird Flu”?
According to the World Health Organization’s (WHO) guidance on pandemic preparedness, Avian Influenza or “bird flu” is “a contagious disease caused by viruses that infect birds and, less commonly, pigs.”3 The virus does on rare occasions infect humans and, in its highly pathogenic form, known as H5N1, can cause severe symptoms and death in more than 60% of cases within 48 hours.4
As of May 16, 2007, the WHO had confirmed only 306 human cases of bird flu.5 Nevertheless, the highly pathogenic form of the bird flu concerns the WHO more than any other transmitted form from birds to humans because of its great potential to develop the characteristics necessary to become an influenza pandemic.6 The bird flu has not yet been sustainably transmitted from human to human, but the WHO warns that, once the disease has evolved for consistent human to human transmission, it will take only 20-30 days for it to attain pandemic status.7
The Center for Disease Control (CDC) estimates that a medium level bird flu pandemic in the United States, absent vaccinations or drug treatments, could cause up to 207,000 deaths, 734,000 hospitalizations, and an economic impact of $166.5 billion, measured by such factors as lost productivity and increased medical expenses.8 The seasonal flu, by contrast, costs us only $10 billion per year.
What Does This Mean for Human Resources Professionals?
As a human resources professional, you will be at ground zero in managing the impact of a pandemic on your organization. You will be responding under extreme stress to complex and urgent issues concerning employee health and welfare and the allocation of scarce organizational resources, seeking to safeguard the well-being of your workforce while ensuring business continuity.
Privacy and the Americans with Disabilities Act.9 It is a well-known fact that the ADA clearly prohibits inquiries into an employee’s health condition. Yet, the instinct of caring leaders planning for a pandemic will be to devise a means of protecting the most vulnerable of employees. You may wish that you knew who is immonudepressed, for example, or who is possibly pregnant, so that you can avoid subjecting them to potential exposure. Your goal might be to favor such employees in your evacuation plans, in decisions regarding who is afforded the opportunity to telecommute or how emergency supplies are distributed.
Family Obligations. You also may be tempted to take family obligations into consideration when determining which of your employees have the opportunity to telecommute during a pandemic. Is it legitimate from a policy standpoint – or even legal – to give an employee telecommuting priority because he or she is caring for young children?
Leave Management. Then there are the attendant leave concerns that are bound to arise in such a situation. How will you manage the reporting of absences due to illness? How will you respond to employees who come to work sick or become symptomatic during their shift? How will you handle what is likely to be an overwhelming number of requests for bereavement leave or time off under the Family and Medical Leave Act to care for sick relatives?
Distribution of Emergency Supplies. Assuming that you have stocked an emergency supply of vaccines, protective equipment, or food, how do you determine the order in which these supplies are distributed? What considerations are legitimate?
In the space of this article, it is not possible to comprehensively address all of the considerations that you should keep in mind in preparing your organizational strategy for dealing with a pandemic. What follows, however, are effective general guidelines for navigating these and other legal and policy questions.
A Few Guiding Principles
Hone your communication strategy. Long before a pandemic arises, you should have reflected upon what is the most efficient means of getting critical information to your employees. Ensure that every one of your employees has received up-to-date leave information (discussed below). And, if a pandemic should arise, do everything in your power to transmit to your employees the latest and most comprehensive information being disseminated by public health authorities.
The managers of your organization can be invaluable in this process as they usually have the most ready means of contacting each of their team members. Make sure that your emergency contact lists are up-to-date, and establish emergency contact procedures, such as phone trees (whereby each person in the organization is responsible for contacting each of his or her direct reports until all employees have been reached). Empower your managers with clear written instructions on how and what to communicate in the event of a pandemic. Depending on the size of your organization, it may also be appropriate to offer compulsory emergency preparedness training to some or all of your managers.
Develop leave policies that take emergencies into consideration before emergencies happen. Experts predict that 20-30 percent of the workforce could be absent during a pandemic due not only to personal illness, but also the illness of close relatives, school closings, transportation problems, or just plain fear.10 You are therefore well-advised not to wait until a pandemic strikes to decide how you are going to manage employee leave.
Consider these issues now and establish sensible leave policies that fairly balance business continuity concerns with employee safety. The inter-agency website, www.pandemicflu.gov, includes a variety of model workplace plans that you can draw upon in developing your policies. In the event of a pandemic, advise employees to stay home if they have any symptoms of infectious disease.11 Given that the symptoms of the bird flu are so similar to seasonal flu, the risk of employee abuse under such a generous policy is more than acceptable.12
Identify essential employees now and brief them on your expectations. Again, the onset of a pandemic is hardly an ideal time to begin pondering these issues. Identifying your essential employees will facilitate the process of determining who must be onsite and where, who is given the ability to telecommute, as well as how other scarce resources will be allocated. According to guidance provided by the Occupational Safety & Health Administration, you should approach the process of identifying your essential employees according to who is “business-essential” and cross-train employees so that three or more are available to carry out “business-necessary functions” if needed in the event of a pandemic.13
As long as your decisions are guided by legitimate business necessity, you are unlikely to run afoul of any applicable laws. Thus, for example, child care obligations are not a legitimate factor in determining who should have the privilege of telecommuting versus having to work onsite in the middle of a pandemic. However, you may wish to implement a liberal telecommuting policy for anyone who is on FMLA leave. And, if you have previously established the need for an employee to telecommute as a reasonable accommodation under the ADA, you may not legally revoke this privilege on the grounds that the person is not an essential employee.14
Understand the “direct threat” exception to the ADA. As mentioned above, the ADA prohibits you from inquiring into an employee’s health condition, even if you were doing so for purposes of safeguarding that employee’s safety. However, you may make a job-related health inquiry of an employee consistent with business necessity.15 If that inquiry yields information that an employee poses a “direct threat” to your workplace, then you may take appropriate employment action based upon that information.
“Direct threat” is defined by the EEOC as a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated with a reasonable accommodation."16 In the simplest of terms, the presence in your workplace of an employee who is infected with the bird flu would clearly pose such a direct threat, and, given the virulence of the bird flu, it would be difficult to argue that an inquiry of this nature would be inconsistent with business necessity.
Note that you must keep any information you obtain from such a medical inquiry in a confidential file separate from the employee’s personnel record.
In possession of information indicating that an employee has contracted the bird flu, you will also need to consider what reasonable accommodation you may make to allow the employee to continue to perform his or her job duties. For employees who perform computer-based work, the opportunity to telecommute will usually be the most effective solution.
If You Would Like to Learn More
The good news about the bird flu is that some of the world’s most intelligent scientists and policy makers have devoted a great deal of thought to pandemic preparedness. As a result, planning resources for public and private sector leaders abound. Consider the following online references:
The Occupational Safety & Health Administration has developed a helpful pandemic preparedness guidance document titled, Guidance on Preparing Workplaces for an Influenza Pandemic, which is available at www.osha.gov/Publications/influenza_pandemic.html.
PandemicFlu.gov, which includes information from a broad cross-section of U.S. agencies, offers a great deal of information on pandemic influenza, including the bird flu. The website includes background information on the bird flu, as well as checklists and planning guides. The document, Community Strategy for Pandemic Influenza Mitigation, available on the Site, is especially informative. www.pandemicflu.gov
The Centers for Disease Control and Prevention also offers extensive information on bird flu, including key facts about the disease and useful information targeted to particular groups of individuals. www.cdc.gov/flu/avian
The World Health Organization, as well, is an excellent resource for those seeking to become better educated about the bird flu, its consequences, and how to respond in the event of an outbreak. www.who.int/csr/disease/avian_influenza/en/index.html
1 Sara Francis Fujimura, Purple Death: The Great Flu of 1918, Perspectives in Health Magazine: The Magazine of the Pan American Health Organization (2003).
2 Martin I. Meltzer, Nancy J. Cox, & Keiji Fukuda, The Economic Impact of Pandemic Influenza in the United States: Priorities for Intervention, http://www.cdc.gov/ncidod/eid/vol5no5/meltzer.htm.
3 Pandemic Influenza preparedness and mitigigation in refugee and displaced populations: WHO guidelines for humanitarian agencies, World Health Organization at 3 (May 2006).
4 Id.; Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1) Reported to WHO, 16 May 2007, http://www.who.int/csr/disease/avian_influenza/country/cases_table_2007_05_16/en/index.html.
5 Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1) Reported to WHO, 16 May 2007, http://www.who.int/csr/disease/avian_influenza/country/cases_table_2007_05_16/en/index.html.
6 Pandemic Influenza preparedness and mitigation in refugee and displaced populations: WHO guidelines for humanitarian agencies, World Health Organization at 3 (May 2006).
8 Catherine J. Luke and Kanta Subbarao, Vaccines for Pandemic Influenza, http://www.cdc.gov/ncidod/EID/vol12no01/pdfs/05-1147.pdf.
9 42 U.S.C. § 12101 (1990).
10 National Strategy for Pandemic Influenza Implementation Plan, http://www.whitehouse.gov/homeland/nspi_implementation.pdf (May 2006).
11 Remarks of Ann McDaniel, Vice President, The Washington Post Companies, The Legal Implications of Corporate Pandemic Planning, District of Columbia Bar Labor and Employment Law Section Program (May 9, 2007).
13 Occupational Safety & Health Administration Guidance on Preparing Workplaces for an Influenza Pandemic, OSHA 3327-02N 2007, http://www.osha.gov/Publications/influenza_pandemic.html.
14 Remarks of Carol Miaskoff, Assistant Legal Counsel for Coordination, United States Equal Employment Opportunity Commission, The Legal Implications of Corporate Pandemic Planning, District of Columbia Bar Labor and Employment Law Section Program (May 9, 2007).
15 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), http://www.eeoc.gov/policy/docs/guidance-inquiries.html.