Download Resources
Influenza and Pandemic Preparedness
A Phase 6 pandemic alert has been issued by the World Health Organization with respect to influenza A/H1N1 (initially publicly reported as “Swine Flu”). A Phase 6 alert means that “a global pandemic is under way.” This is the first Phase 6 alert that has been issued in 41 years.
The WHO maintains that the new designation does not indicate that the disease is more deadly; rather, it signifies that it has spread to more countries. Further, WHO officials, in an effort to lessen the economic effect of this decision, are urging countries not to close borders or limit travel and trade.
A joint statement issued on June 11, 2009 by U.S. Department of Health and Human Services Secretary Kathleen Sebelius and U.S. Department of Homeland Security Secretary Janet Napolitano states that the WHO’s decision will “remind the world that flu viruses like H1N1 need to be taken seriously.” The statement also warns that “[a]lthough we have not seen large numbers of severe cases in this country so far, things could possibly be very different in the fall.” Accordingly, aggressive steps have been taken to work with local governments, schools and private businesses to control the spread of the disease and “keep the American people safe.”
What It Means to Industry
The United States has declared a public health emergency. The national strategy published by the Administration urges industry to endeavor to maintain continuity of operations. The Occupational Safety and Health Administration (OSHA) has issued guidance on preparation of workplaces for influenza.
This may create legal obligations for employers to develop programs for the protection of employees. An influenza pandemic has the potential to affect business activity and disrupt the flow of commerce globally for an extended period of time.
A critical consideration is that we have not confronted a comparable event to date in the era of globalization, in which travel, global commerce and other activity have reached unprecedented levels. As a result, there is no "game plan" for such an event. At the same time, this era is characterized by a greater degree of litigation than any in history, creating a universe of obligations, requirements and compliance responsibilities.
Pandemic planning requires attention to employee health and safety as well as customer health and safety; coordination with global, federal, state and local authorities; communication plans; service and supply chain integrity preservation; and systems for dealing with the tremendous paperwork during and after the pandemic.
Human resources policies may need to be modified considering the potential length and severity of a pandemic, as well as the need to limit the spread of infection and to account for the unavailability of public services such as schools and public transportation.
Disability and leave policies should be reviewed. They may need to be amended to encourage contagious individuals to remain at home and to ensure compliance with statutory and regulatory requirements in the context of a pandemic. Employee and labor union agreements may need to be amended to permit, among other things, cross-training and succession planning.
Contracts with customers and suppliers of both critical inputs and business services must be reviewed to ensure the company has adequately taken into account the potential financial impact of failure to perform. Insurance programs must be reviewed to determine the adequacy of coverage for health and death benefits, as well as the availability of coverage for business losses.
The most comprehensive pandemic plan cannot fully protect employees and customers from illness and may not prevent unintentional breach of contractual obligations or other legal issues. It is inevitable that a pandemic could result in legal action by various parties – employees, customers or governments. How well, or poorly, a company plans will determine liability later. The level of publicity attendant to this particular event will create additional requirements of care.
The global media is replete with warnings, action plans, checklists, guidelines, and pronouncements from global health and U.S. government authorities. Our team can help plan to limit the potential for problems down the road by anticipating potential issues, and developing a multifaceted plan that takes into account all of these variables. Working with world-class, international epidemiologists and microbiologists, as well as with design specialists and senior-level government officials in the relevant agencies, we can assist in designing a plan for a company, regardless of its size or its location in the world.
Our Team
At Bryan Cave, we understand well the importance to the integrity and continuity of our clients’ national and global operations of forward planning for the unexpected. In a time of unparalleled economic hardship, mitigating the inevitable cost, both human and commercial, of unforeseen emergencies is critical to the health of any company, no matter the size.
In response to the global call for action, and consistent with our "one firm" philosophy, Bryan Cave has assembled a team of experienced attorneys from our offices around the world, encompassing a range of client service teams that reflects both the global and multifaceted elements of the challenges posed by this pandemic threat.
Our team includes attorneys highly experienced in managing the complex scientific, legal, business and communications issues that accompany infectious disease outbreaks, as well as commercial litigators experienced in addressing the inevitable ancillary issues; labor and employment specialists who understand the impact of public health threats on employers and employees, as well as the requirements imposed by the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) as well as their respective state and local analogues; and regulatory experts who are experienced in understanding the obligations, compliance environment and the public health issues exemplified by the close cooperation of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS) and its Food and Drug Administration (FDA), the Department of Homeland Security (DHS), the National Institutes of Health (NIH), and other agencies.
Our attorneys are familiar with all of the issues that can be expected to arise in a pandemic, and can assist companies in planning ahead – efficiently, cost-effectively and rapidly.
If you need assistance on preparing or responding to H1N1 issues, or if you would like to have a contingency plan in place for future concerns, please contact:
Troy B. Froderman602-364-7452 (direct)
Mark Mansour202-508-6019 (direct)