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Pandemic Preparedness:Developing Your Company’s

Plan & Thinking Through theLegal Issues

May 23, 2006

Presented by the Employment and Labor Law Committee andLittler Mendelson, P.C.

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PanelPatti Phelan, Moderator – Legal Counsel, NDI

Keith Robertory –Preparedness Manager,American Red Cross

Peter A. Susser – Littler Mendelson, P.C.

Chris Hansen – Senior Counsel, American Red Cross

Ed Eaton – Managing Director, Crisis Management Int’l

Pandemic Influenza What you need to know today.

Keith RobertoryAmerican Red Cross

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AgendaInfluenza viruses introductionWhat makes a pandemicHistorical pandemicsHow a future pandemic might lookBecoming personally prepared for apandemic

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Influenza (or flu)The flu is a contagious respiratory illness caused bya virus.It can cause mild to severe illness, and at times canlead to death.A person infected with the flu can transmit the flu1-2 days before they have symptoms.A person infected with the flu can transmit the flu4-5 days after symptoms start.

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Influenza spreadSpread by contact with an infected person by:

SneezingCoughingTouching items recently contaminated by aninfected person

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Influenza symptomsSymptoms include:

Fever (usually high) and chillsBody achesSore throatNon-productive coughRunny or stuffy noseHeadacheExtremely tired (fatigue)Diarrhea

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Seasonal fluThe seasonal flu usually occurs annuallybetween December and March.Every year in the US on average:

>200,000 people are hospitalized36,000 people die

Most people who get the flu recover within 1-2 weeks and do not require medical treatment

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The difference betweenseason flu and pandemic flu

Seasonal flu is predictable where pandemic flu is notpredictable.Pandemic flu caused by a new flu strain that humanshave not been exposed to, so they have no naturalresistance or immunity to it.Pandemic flu infects large numbers of people ofdifferent ages all over the world and causes seriousillness and deaths

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PandemicA disease outbreak that spreads rapidly andaffects many people world wide.Characteristics

New virus that spreads easily as most people aresusceptibleEffective human to human transmissionMeasured by how fast the virus spreadsWide geographic spread

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Past influenza pandemics

700,000

1-2 million

40 million

DeathsWorldwide

Persons under 20years old

8,300Russian Flu (H1N1)

1977-78

Infants, elderly36,000Hong Kong Flu (H3N2)1968-69

Infants, elderly70,000Asian Flu (H2N2)1957-58

Persons 20-40 yearsold

500,000Spanish Flu (H1N1)

1918-1919

Population AffectedDeaths inthe US

Pandemic

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Pandemic wavesPandemics occur in multiple waves of diseaseoutbreaksThe first wave in a local area is likely to last 6to 8 weeksThe time between pandemic waves varies andcan not be easily predicted.

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Current concerns aboutavian (bird) flu

Historically unprecedented disease outbreakin poultryHuman cases reportedas of May 19, 2006:

217 cases123 deaths

No sustained human to human transmissionidentified.

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Is a vaccine available?A vaccine to protect people from pandemicflu is not available nowA vaccine may not be available at the start ofa flu pandemic.The best protection is to practice healthyhygiene to stay well now and during a flupandemic.

Preparing for a Pandemic

What you can do today.

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Practice healthy hygieneClean hands often

Wash hands with soap and water orClean hands with hand sanitizer

Cover mouth and nose when you sneeze orcough and clean hands afterwardsKeep hands away from faceStay away from people who are sick

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Prepare at homePlan now to care for yourself or loved oneswho get the flu.Determine what supplies you will need toprovide care at home.Plan how you will care for someone in yourhousehold who becomes sick.

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Stock up nowReduce your need to go out during a local flupandemic by stocking extra food, water andsupplies at home.If you do get sick and have extra supplies on-hand, you will help reduce the spread ofpandemic flu by staying home.

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Prepare at your workplaceAsk about plans:

for employees who get sick during apandemic and need to stay home.to keep the business functioning if key staffcan’t come to work.for sick leave, benefits and wages whenemployees are asked to remain at home.

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Prepare at schoolAsk about plans:

at your child’s school or day care regarding aninfluenza pandemic.to encourage parents to keep children whoare sick to stay home to reduce the spread ofthe flu during a local pandemic.

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What to expectUnlike other disasters, a pandemic flu is aninfectious disease that does not damage homes,utilities, buildings and other structures.If the people who keep facilities, transportation andsimilar public systems are unable to work, daily lifewill be disrupted.A flu pandemic is similar to other disasters becauseit will disrupt your daily routinesYou will be asked to take personal action to reducethe spread of the flu pandemic virus.

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Internet resourcesWorld Health Organizationhttp://www.who.int/csr/disease/avian_influenza/en/Centers for Disease Control and Prevention(CDC)http://www.cdc.gov/flu/avian/index.htmU.S. Government (managed by DHHS)http://www.pandemicflu.gov

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Internet resources (cont.)

CDC, NIOSHhttp://www.cdc.gov/niosh/topics/avianflu/OSHAhttp://www.osha.gov/dsg/guidance/avian-flu.html

DHHS, National Vaccine Program Officehttp://www.dhhs.gov/nvpo/pandemics/index.html

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Thank you

Please rememberto clean your hands.

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Pandemic Influenza:

The Potential Employment Law Issues

Peter Susser, Littler Mendelson

Chris Hansen, American Red Cross

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Workplace Safety andHealth Obligations

Leave and DisabilityIssues

Privacy/ConfidentialityConcerns

Staffing Issues Compensation,

Benefits Issues Travel

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Workplace Safety and Health Obligations OSHA Requirements

General Duty Clause –recognized hazards

Role of public healthrecommendations

Assess buildingventilation, filtersystems

Relevant OSHA Standards First aid and medical

response Personal protective

equipment Training obligations –

infection control procedures

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Personal Protective Equipment Assessment & certification Hand, body protection

Gloves, aprons Respiratory protection

Rules applicable tosurgical masks, filteringfacepieces & moresubstantial respirators

Enhanced CleaningProtocols –

General hygienepractices (cleansers,disposable items, tissues,notices about handwashing)

Contractors

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OSHA Guidance Protecting Workers Against Avian Flu

Farm Workers/Animal handlers Laboratory workers Medical workers that transport/treat avian

flu patients Food handlers Airline crews Travelers

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Other Means of Protection Vaccination

Selection ofemployees

Potential claims

Return-to-workcertification

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Leave and Disability Issues Application of Requirements

for Job-Protected FMLALeave “Serious Health

Condition” of eligibleemployee or coveredfamily member

Scope of protections; moreexpansive state laws;documentation

Potential expansion of pre-existing leave policies

USERRA issues in potentialGuard/Reserves activation?

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Leave and DisabilityIssues

Disability Discriminationstatutes Scope of obligations: Non-

discrimination, reasonableaccommodation

Are conditions protecteddisabilities? Federal andstate law definitions

Limitations on medicalexaminations and health-related inquiries

Confidentialityrequirements under ADA

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Restricting Access to Worksites& Discrimination/Privacy Constraints

Public Health Guidance:discourage worksiteattendance of those ill with, orexposed to, pandemic flu

vs. Constraints under disability

laws, HIPAA, medicalconfidentiality statutes Sharing employee health

information, Screening/testing, Acting on the basis of

perceived conditions Acting on the basis of

one’s “association” withdisabled individuals

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Staffing Issues Application/Enforcement of

Traditional Attendance &Absenteeism Rules

Reluctance to work, travel dueto fears of exposure Handling healthy employees

refusing to come to work Cross-training employees Plan for sharply reduced

workforce: alternative sourcesof labor – availability, training

Impact of reduced customerdemand: curtailed businessoperations

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Staffing Issues Alternative modes of work and

revised scheduling (to minimizeexposure while traveling to andat the worksite)

Remote or alternative locations,including telecommuting

Ability to shift focus of personalworksite presence toaccomplish business tasks

Communication plan

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Labor Relations &Labor Law Issues

Union Contract & Labor Law Restrictions onStaffing Actions Contract restrictions on alternative staffing

measures Scheduling/assignment constraints Layoffs, closings and other workforce

reductions

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Business Interruption Closings & Workforce Reductions:

WARN requirements Union-related bargaining obligations Policy and benefits program

application to disruptions inoperations

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Compensation/Benefits Issues Coordination of pre-existing

policies and benefits programswith current circumstances Sick leave, vacation, PTO,

short- and long-termdisability insurance

Health benefits coverage Other forms of income

replacement? Potential exposure to

workers’ compensationclaims (travelers, first aidresponders, others)

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Business Travel Carefully limit, scrutinize

and plan any cross-bordermovement of staff in lightof health developments

Return of expatriates? Procedures for return to

domestic offices followingtravel

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Pandemic Influenza Planning as Part of theOverall Emergency Planning & Business

Continuity Program NFPA 1600 – Focus on

protection of thebusiness’ core assets Strategic plan Emergency

operations &response plan

Mitigation plan Recover plan Continuity plan

Avian Influenza Pandemic -Preparedness for a PublicHealth Emergency

Ed Eaton, MBCIACC WebcastMay 23, 2006

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Why Prepare?Avian Influenza Pandemic has potential to be a trueglobal “public health emergency”US and other governments taking actionOutside of our normal “crisis” thinking

Time (length) of impactGeographic SpanFace-to-face with our “efficient infrastructure”Very few practical experiences (i.e., SARS)

Example: Y2K and 9/11

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Aspects of the Problem

Health & Medical IssuesGovernments ActionsPublic Fear & ResponseMedia ResponseSocial InfrastructureOverall Economic ImpactSpecific Business Impact

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Life of PandemicThe Disease

Early WarningsIllness trackingPattern recognition

Outbreak TriggerRemote / LocalPublic Health AssessmentGovernments Actions

PandemicWaves of Illness

New Normal

Company ResponsePreplanning / TrainingPandemic Plan activationTaking Advantage ofWindow of ControlCycles of:

AssessmentPlanning Actions &CommunicationsImplementationFeedback

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Assessment – KnowledgeLots of Unknowns

Will pandemic occur? When? What effect?What will governments actually do?Will medical community be effective?What will media effect be?

Some things are knowableBusiness Infrastructure – locations, people, facilities,connections & dependencies, customers, etc.Business Impact Analysis – critical functions, locations,vulnerabilities to disruptionRevenue Chain analysis – who, where, how long,transportation routes & modes, customer issues

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Assessment – ControlOutside your control

Disease, Government action, public reaction, etc.

In your controlInventory & Position – Revenue ChainTraining, Cross-training and certificationsDocumentation on processes, shut-down & start-upproceduresRemote work infrastructure & competence

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So, what can you do?Define ObjectivesLearn what you can – CDC, WHO, National, State, local plans

Define Assumptions – what do you think this could look like?

Define Strategic PrioritiesPlanning – leverage what you already have – BCP, Crisis Management

Conduct Tabletops for Planning & OrientationCommunicate, Communicate, Communicate

Revenue / Value ChainPublic Health and Government officialsEmployees, management, family members

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Planning FrameworkFramework of Response Posture

WHO levels, Company-specificDetermine how to manage – Crisis Management Team?Trigger PointsFor Consideration:

Actions – Response and ManagementCommunicationsPreparations for Future EventsAssessment of the New Normal – its challenges andopportunities

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Planning ItemsSick @ Work proceduresDefensive QuarantinesSocial DistancingRemote work strategiesMedical / Health initiativesEmployee TrainingPreplanned Communications Strategy

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Questions?