Employers should be prepared if a pandemic occurs. This Memorandum identifies the key legal issues an employer should consider in preparing for and responding to the effects of a pandemic in the workplace. The information will also help employers in preparing for and responding to other illnesses, such as seasonal influenza, that may be less widespread but still affect the workplace.

Legal Concern

In a pandemic, an employer should have a legal concern that:

• The pandemic virus was present in the workplace and the employer’s efforts to control exposure were insufficient.
• Employees were required to perform tasks that exposed them to the hazard of a pandemic influenza.

Monitoring
 

An employer’s response to a pandemic should be modified as the virus abates or becomes more prevalent. For example:

• Heightened protection standards may be required on the initial outbreak of a pandemic when information about the severity and transmissibility of the virus is limited.
• As the pandemic progresses, the employer must review protective measures implemented in the workplace and make modifications where necessary.

Develop a Pandemic Preparedness Team

Create a task force to plan the employer’s response if a pandemic outbreak occurs. The team should include representatives from: management; operations; facilities; human resources; the information technology department; and the legal department.

Develop a Pandemic Preparedness Plan

Employers should develop and implement a disaster plan that covers pandemic preparedness. Items for consideration to be incorporated into a plan include:

(a) An assessment of the employer’s vulnerability in the event of a pandemic.  Is the employer at low risk, medium risk, or high risk for more information on risk levels, see below?

(b) Identify essential operations and business-essential positions to:

(i.) understand which lines of production or service can be shut down without jeopardizing business; and
(ii.) plan for continuity of the operations that must continue in the event of a pandemic.

(c) A plan for replacement employees in the event of a pandemic by:

(i.) cross-training employees so they can fill in for those who may be home sick;
(ii.) considering alliances with temporary employment firms; and
(iii.) preparing to work with a reduced workforce.

(d) Consider creating a telecommuting option in the event of a pandemic outbreak by:

(i.) evaluating whether the business can function properly if a large number of employees choose to telecommute; and
(ii.) testing the information technology system by asking employees to log on and attempt to work on the remote system.

(e) Organize a team to:

(i.) communicate information to employees in the event of a pandemic; and
(ii.) incorporate information from federal and local health departments into the message to employees about a pandemic.

Consideration of Plan Based on Workplace Risk Levels

Employers take specific, additional precautions according to the risk level presented by the particular work environment. An employee’s risk of workplace exposure to a pandemic influenza may be categorized into three levels, as follows:

1. Lower Exposure Risk. This includes employees that are not required to have contact with people known to be infected with the pandemic virus, or frequent close contact (within six feet) with the general public, such as office employees.

2. Medium Exposure Risk. This includes employees having frequent or close contact with others (coworkers, general public, or school children), such as teachers, bank tellers, or grocery store cashiers.

3. High Exposure Risk. This includes healthcare employees working in close contact (within six feet) of patients known or suspected to be infected with a pandemic influenza, such as doctors, nurses, and other hospital staff entering patients’ rooms.

Basic Precautions all Employers Can Take

In the event of a pandemic (outbreak of a disease/virus over a widespread geographic area), an employer should implement certain precautions to help prevent the spread of the disease/virus at the workplace. The employer, in responding to an on-going pandemic, should consider taking basic precautions, including but not limited to the following:

• Making alcohol-based hand sanitizers and disinfectant wipes available for employee use;
• Encouraging employees to stay home when they are sick without fear of being penalized;
• Ensure senior personnel set a good example by staying home when they are sick;
• Regularly checking for updated information from government agencies;
• Taking appropriate safety measures in the workplace based on the most current pandemic information.

Recommendations of Certain Practices All Employees Can Take

In the event of a pandemic, an employer should encourage employees to adopt the following practices:

• Regularly wash their hands with soap and water or use hand sanitizer, regardless of any coughing, sneezing, or blowing their noses;
• Avoid touching their noses, mouths, and eyes;
• Cover their coughs and sneezes with tissue or their arm;
• Wash their hands or use hand sanitizer after coughing, sneezing, or blowing their noses;
• Avoid close contact with coworkers and clients by keeping a distance of six feet;
• Avoid shaking hands;
• Refrain from using coworkers’ desks, phones, tools, equipment, or work stations;
• Lead a healthy lifestyle, including good nutrition, exercise, and not smoking, to maintain a better immune system;
• Avoid fact-to-face meetings in favor of video or teleconferencing;
• Hold meetings in large, well-ventilated areas where employees can maintain a distance of at least six feet from one another; and
• Keep unnecessary visitors, family members, and other members of the general public from visiting the workplace.

Lower Risk Workplace Recommendations

In addition should basic precautions, employers with lower risk work environments inform employees about:
• Options for working from home.
• Office leave policies, day care availability, payroll procedures, and what to do about transportation issues.
• The location of cleaning supplies for hand hygiene.
• Ongoing public health information about pandemic flu recommendations and where that information can be found at the workplace, including, for example:

• on a website;
• on a bulletin board; or
• by a designated employee responsible for communicating that information.

Medium Risk Workplace Recommendations

In addition to basic precautions, OSHA recommends employers with medium risk work environments consider the following issues when developing plans for workplace safety and health during a pandemic:

• Work practice and engineering controls. This includes:

• instructing employees to avoid close contact with other employees and the general public by maintaining a distance of at least six feet;
• minimizing face-to-face contact by offering internet, phone-based, drive-through window, or home delivery customer service options;
• conferring with employees to devise new ways of working that promote health and safety among employees and customers;
• installing physical barriers, such as clear plastic sneeze guards where possible (for example cashier stations or bank teller stations); and
• providing medical screening or other employee health resources.

• Administrative controls. This includes ensuring that:

• employees understand pay and leave policies, and what to do about transportation issues and day care concerns;
• employees know the location of hand and surface hygiene supplies at the workplace;
• important pandemic flu information is available through a person, website, bulletin board, or other source, and that the source is communicated to employees;

• signs are posted to inform customers about flu symptoms and ask sick customers to minimize contact with employees; and
• access to the employer’s workplace by customers and the general public is limited or restricted.

Additional Items For Consideration in Developing A Plan
(a) Define a work related illness. An illness is work-related if events or exposures in the work environment caused the illness, contributed to the illness, or significantly aggravated a pre-existing illness.  It may be difficult to determine if a pandemic virus infection is work-related. For example, an employee may be diagnosed with the H1N1 virus after working closely with a coworker or customer who was diagnosed with the virus. If the employee becomes ill, misses work, and receives prescription medication, this would likely be a work related illness. unless the employer can prove that the employee contracted H1N1 in another way, and that workplace exposure had no effect, the illness would likely be seen as work related. In contrast, an office worker diagnosed with H1N1 who has no contact with the public or infected coworkers, but who is caring for a child diagnosed with H1N1, has likely not experienced a work-related illness.  What is the legal implication of an illness being work related?  Could the employer have taken any steps to prevent the employee from contracting H1N1 and does that have any legal significance?

(b) Inform employees about the employer’s leave policies, payroll procedures, and daycare availability (if the employer provides it) in the event the employee (or the employee’s child) becomes ill with seasonal flu or as a result of a pandemic.

(c) When employees who become ill can return to work (for example, no sooner than 24 hours after their fever has resolved without the use of fever-reducing medicine).

(d) Policies on leave and sick time to:

(i.) confirm sick time without pay is allowed if an ill employee has exhausted any accrued sick leave; and
(ii.) consider addressing time off (paid or unpaid) for employees who may need to care for children who are sick with seasonal flu or as a result of a pandemic.

(e) Plan any necessary information technology upgrades to:

(i.) enable employees to work from home, if necessary; and
(ii.) confirm that the employer can communicate with employees in the event of an office closure or widespread absenteeism resulting from a pandemic.