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Employer Preparation for a Pandemic

Lawrence D. Dietz, Esq.
TAL Global

To most public health authorities, including the Centers for Disease Control (CDC), the question is not "if" there will be a pandemic, but "when" it will occur. A pandemic is a global outbreak of a disease. Pandemic influenza has been a historical fact of life with pandemics occurring in 1918, 1957 and 1968. While the number of deaths dropped considerably from 40 to 50 million in 1918 to 2 million deaths in 1957 and 1 million deaths in 1968, the impact of a 21st century pandemic is hard to gauge.

The Federal Government, state governments and many city governments have each developed pandemic flu (PanFlu) plans. The US Federal government lead agency for PanFlu planning is the Centers for Disease Control and Prevention (CDC). Its PanFlu Operations Plan can be found at The state of California’s plan, a hefty 178-page document can be found at

Many organizations beside governments have developed their own PanFlu Preparedness and Response Plans. These plans are generally variations of other contingency plans and include a variety of elements from business continuity, emergency and response plans. From an employer’s perspective, PanFlu plans should have some unique content such as a clear restatement of leave of absence policies and details concerning policies, procedures and documentation covering telecommuters who are being "sheltered in place" and are working from home.

Operational aspects of PanFlu plans will include concept of operations under varying levels of absenteeism; procedures for monitoring employee health at work designed to ferret out employees who have not fully recovered from their influenza but who have returned to work too early, as well as practical strategies to implement social-distancing to limit group gatherings and reduce the chances for infection due to proximity.

Employers should consider adopting a communicable disease policy requesting employee notification of possible exposure, as long as the employer is fully cognizant of their privacy obligations under federal law such as Health Information Portability and Accountability Act (HIPAA and state privacy laws such as the California Constitution). Employers will likely be required to issue appropriate personal protection equipment (PPE), and to provide awareness training so that all employees can be sensitive to the risks of PanFlu and aware of their responsibilities for self protection and maintenance of privacy protected information about others.

Employer plans need to take into account the social distancing actions likely implemented by governments, which would including closing schools and day care, cancelling public gatherings and enforcement of isolation or quarantine rules.

In addition to HIPAA, a number of federal laws will come into play during a pandemic. The Occupational Safety Health Act, Family and Medical Leave Act (1993), Americans with Disability Act (1990) (ADA), Employee Retirement Income Security Act (1974) (ERISA) and the Fair Labor Standards Act (1938) to name a few. It is important to realize that state laws in these areas such as the Labor Codes and the Fair Employment Housing Acts will be involved as well. Employers should bear in mind that many state laws have stricter provisions than their federal counterparts.

Worker’s compensation, leaves of absence and potential tort suits for negligence are avenues of recovery which may be pursued by employees affected by the pandemic. Employers need to be certain that they have paid all their insurance premiums and that they have covered all their legal bases to minimize their liability.

In conclusion, employers need to validate that they have performed their due diligence in developing plans to cope with a pandemic. Employee welfare should be upper most in the mind of employers and contingency plans should reflect a variety of options depending on the severity of the pandemic’s effects on employees and on the employer’s supply chain.

Related Reading

Pandemic Influenza: Emergency Planning and Community Preparedness Pandemic Influenza: Emergency Planning and Community Preparedness
This book outlines the containment and response capabilities needed to effectively plan and prepare for a wide-spread outbreak. Addressing clinical factors and public health challenges, the authors examine critical issues such as the types of influenza and related health implications, outbreak prevention and mass prophylactic measures, medical supply and fatality management, response actions for various emergency service disciplines, and the potential economic effects of a pandemic outbreak. Mirroring the goals of the U.S. National Strategy for Pandemic Influenza, the text underscores the importance of expanding the health care system’s capacity to provide adequate triage and medical care.
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