Written By Frederick von Veh

In light of the extensive news coverage given to the possibility of an H1N1 Flu Virus pandemic, many employers are concerned about their operations as well as potential legal obligations should such a pandemic occur. This Alert provides guidance for considering and developing a plan to help ensure the safety of the workplace, should a pandemic occur. Having operational as well as communication plans may also prepare the organization in the event of other emergencies.

Because a pandemic will impact different types of businesses differently, and because different types and sizes of businesses will have different needs, not every point in this Alert will be relevant to every business. Bennett Jones lawyers are ready to help you address your specific business needs and implement emergency preparedness and disaster response plans that are tailored to your needs, size and business operations.

What is H1N1 Flu?

H1N1 Flu emerged in Mexico and has now spread to other parts of the world. It is a respiratory illness with symptoms similar to ordinary seasonal flu. It can spread very quickly and healthy persons can become seriously ill once impacted. Fatalities occur.

How does it Spread?

H1N1 Flu spreads the same way as an ordinary flu. This happens through droplets contained in sneezes and coughs and it is primarily spread by hand contact. That is the reason why basic precautions can greatly reduce its spread.

What are the Symptoms of H1N1 Flu?

Symptoms include headache, chills and cough followed by fever, loss of appetite, muscle aches and fatigue, runny nose, sneezing, watery eyes and throat irritation. Nausea, vomiting and diarrhea may also occur. In severe cases, complications such as pneumonia may develop. It is important to note that the combination of the various symptoms can, and have become fatal.

Steps Your Business Can Take to Prepare for a Pandemic

1. Form a Pandemic Team/Disaster Preparedness Team

Companies may want to form teams to develop plans and assign responsibility for dealing with a possible pandemic. Others may use teams already in place, such as emergency response teams or disaster preparedness teams. Consider who, from operations, human resources, and elsewhere should participate. Does your organization have access to an occupational medicine department, or, for organizations without the infrastructure for an internal medical department, a reliable occupational medicine consultant? Employers who currently have disaster preparedness and emergency response plans in place should start with these plans and evaluate whether they address all the potential issues that may arise, or whether they need to be amended. The organization should try to learn how other organizations, worldwide, have addressed this issue as well as other health crises.

The team should then establish an emergency communications plan that identifies key contacts (with back-ups), a chain of communications (include suppliers and customers), and processes for tracking and communicating business and employee status. Consider how employee communications will be maintained in the event of a pandemic (for example, a password protected web page, e-mail, telephone). Develop a protocol to warn employees during emergencies. Communicate with clients and partners either to warn them of interruptions in service/supply or reassure them of your ability to deliver despite a disaster.

The team should also schedule routine plan tests to allow your employees to become comfortable with the procedures and allow the team to assess vulnerabilities. Include all departments and use test results to make improvements to your plan. Look for weaknesses in your facility and particularly in the Human Resources department. does your computer system have capacity to handle a large number of off-site logins at one time? If not, consider scheduling employees to login and work only during their designated time frame to avoid overloading the system.

2. Identify whether your company has an existing business continuity plan applicable to a pandemic.

If your company does not have a business continuity plan, you may want to consider creating one. If your company presently has a plan, consider whether the plan addresses long-term absenteeism rates. Can the pivotal business functions be maintained with minimal staff ? What portion(s) of your business functions can be performed remotely?

3. Identify the company's essential functions and who performs them.

• Determine what is critical to ensure that the business and/ or particular facility can continue to operate. What are your essential technology needs? For example, what are the systems or system applications necessary to perform critical business functions? Who are your essential employees? What are your essential raw materials? Identify your critical partners or suppliers, knowing that they will likely be affected. Will you be disproportionately affected by partner relationships with organizations in locations at higher risk?
• Develop backup plans to ensure the availability of employees and material essential to the continuation of operations. Cross-train your employees on essential jobs. Identify alternative sources of raw materials or supplies. Develop professional relationships with more than one company to use in case a primary contractor or supplier cannot meet your needs.

4. Identify the essential government functions that affect your business.

How can you ensure that the essential functions of your business continue to operate given limited supplies of: power, water, sanitation, transportation, and a sufficient food supply?

5. Identify the external activities that are critical to maintaining your business functions.

Does your business require travel to other areas affected by a pandemic? Have you developed contingencies to restrict travel to these areas? does your business maintain inventory reserves? does your business run on a “just in time” inventory? If possible, stockpile essential raw materials or supplies.

6. Identify your company policies and how they would be affected by a pandemic.

• What is your company's policy on sick leave? To what extent are employees able to carry over or share/bank accrued sick leave? What are the implications of such a policy under wage payment and benefits leave?
• What is your company policy on medical leave? Have you considered developing leave policies to be used in a pandemic situation that encourage employees to remain at home if they are sick or are caring for sick dependents? Such policies should be clearly worded to apply only in situations that implicate the use of your emergency management plan, to ensure they do not affect your day-to-day policies. Limit the contours of your plan to prevent it from working against you.
• Do you have a telecommuting policy or at least an emergency telecommuting policy? Have you addressed any possible security concerns (through technology and through agreements creating binding legal obligations) if more employees are forced to work remotely?
• Do your company policies address issues that may arise in a possible pandemic, such as: quarantine policies, social distancing policies, and increased sanitation policies to ensure a healthy work place?

7. Identify what health information is presented and given to employees.

Are employees sufficiently educated on basic sanitation at work? Do your employees have access to hand sanitizers? Educate your employees on the signs of infection. Develop a relationship with a medical professional who can provide information now at the planning and educating stage and later when questions arise during an emergency. This will allow your management team to make decisions based on objective medical standards rather than on subjective fears.

8. Develop plans to allow employees to work from home or remotely.

Does your company have the software or other equipment to enable employees to work from home? does your company have computers for employee use at home? Do employees have home computers that they can use for work? Have you explained your employees' obligations and your expectations should employees need to work at home? Do you have policies in place to continue to ensure quality and productivity? Is it possible to expand online and self-service business options for your company?

9. Discuss pandemic policies with insurance carriers.

How are your insurance providers preparing for a possible pandemic? How will a pandemic affect your health insurance, disability insurance, or life insurance coverage? Are your insurance providers communicating accessible health information on flu and other health issues on their websites or by other means?

10. Ensure effective employer/employee communication regarding a pandemic flu.

Communication with employees is essential, especially during the tumultuous atmosphere a pandemic will likely create. Before a pandemic arises, employers should consider their internal and external communications plans. For example, is it feasible to establish a hot line for employees to use in the event of a pandemic?

Discuss the threat and implications of a pandemic flu with your employees and be open about the steps your company is taking to prepare for a pandemic. Preparing ahead of time and articulating a plan may reduce anxiety and give employees a greater sense of control if an emergency does arise. Consider preparing and distributing information that will help employees prepare themselves for a potential pandemic, such as planning checklists for use at work and at home, a list of emergency health information, and emergency contact lists.

11. Develop a recovery plan.

Determine what will be necessary to rebuild your company and consider recovery time objectives. Determine when it will be possible to return to the office or place of employment. How will you sanitize the workplace, assess damages, resume operations, and restore normal operations?

Basic Contamination Avoidance Steps

The Ontario Ministry of Health and the Public Health Agency of Canada encourage basic standard good hygiene practices for the prevention of the spread of H1N1 Flu. Such practices included:

1. Good hand hygiene is the best way to prevent the spread of all flu viruses. Wash your hands with soap and water thoroughly and often.
2. Keep an alcohol-based sanitizer (gel or wipes) handy at work, home and in your car. It needs to be at least 60% alcohol to be effective.
3. Cover your mouth and nose with a tissue when you cough or sneeze and dispose of tissue. Cough into your upper sleeve if you don't have a tissue.
4. Avoid large crowds of people where viruses can spread easily. Stay home when you are sick.
5. Keep common surfaces and items clean and disinfected.

Other steps employers can take to reinforce good hygiene practices include:

1. Preparing or re-circulating hygiene policies and information regarding the symptoms and modes of transmission of influenza.
2. Ensuring sufficient supplies of sanitizing products (i.e. hand sanitizers, sanitizing wipes, soap in restrooms, etc.) are available for all employees. Consider making other items, such as disposable gloves and goggles, available where appropriate.
3. Ensuring medical kits are adequately supplied and refreshed.
4. Ensuring facilities are properly ventilated and that ventilation systems are working properly throughout the workplace.
5. Keeping the workplace clean. This includes carpets, restrooms, eating areas, doorknobs and switches, as well as each workstation. Educate your cleaning staff on how to reduce the outbreaks (i.e. use damp rather than dry dust rags to avoid spreading dust particles; use chlorine based solutions).

Preparation Costs

How much preparation is necessary? What should you spend preparing for a pandemic that may never occur? This may vary in accordance with the employer's particular business and level of risk-tolerance.

Potential Legal Issues

H1N1 Flu will force employers to confront workplace legal issues, including:

1. Employment Standards and Human Rights Legislation: What rights and obligations do your employees have at each location under applicable federal or provincial leave laws? Who are your “key employees” and how will you address their inevitable absences? How do your policies address employees unable to return in a timely manner? Are you prepared to count and adapt to employees using intermittent leave?
2. Occupational Health and Safety Legislation: Are you susceptible to claims under applicable health and safety legislation and regulations stemming from exposure to harmful viruses at work? What rights do employees have to refuse to work based on reasonably based perceptions of health risks? What are the other rights of employees who collectively express concerns over safety and health risks? How will you address employees' questions or concerns over the health and possible contagiousness of a co-worker? In addition, persons with compromised immune systems may begin making reasonable accommodation requests to telecommute or other accommodations designed to protect them from exposure to illness. Are you prepared to address these requests? To what extent do you have a right to exclude employees from the workplace as a threat to safety and health?
3. Applicable Labour Relations/Labour Code Legislation: If your employees are unionized, how restricted is your ability to make changes and impose new policies unilaterally under the collective bargaining agreement? When a large number of employees decide not to come to work, when can you hire replacements? Even employers with union-free workplaces should consider whether a refusal to work because of concerns over safety or health risks could be considered protected concerted activity under applicable labour relations legislation.
4. Workers' Compensation Claims: Will you need to respond to workers' compensation claims by employees claiming to have become ill due to workplace exposure to the virus?
5. Negligence Claims: Have you taken all precautions reasonably necessary to prevent infection? If an employer knows or should have known of an infection and fails to take appropriate action to prevent the spread of flu, the employer may be liable for negligence.
6. Contract Claims: Will you be able to defend against contract claims if you are unable to meet your contractual obligations to your customers?
7. Trade Secret Protection: If you are forced to change your traditional methods of performing work, have you taken measures to protect your trade secrets and confidential business information?
8. International Operations: If you have international operations and employees, are you aware of your obligations that may arise from the fallout of an epidemic under the laws of those countries?

This document had been adapted for use in Canada from Ford Harrison LLP “Legal Alert: Swine Flu Pandemic - Advice for Employers”.