Swine Flu Outbreak May Require
Employers to Take Action

By David Minces, Adams and Reese LLP Special Counsel

Both the United States Department of Health and Human Services and the World Health Organization have made public declarations of the risk of pandemic due to the outbreak of swine influenza A (H1N1). These declarations impose on employers the duty to take reasonable steps to protect customers and employees. And while the initial outbreak of the swine flu has not been as severe as initially anticipated, the CDC has indicated that it is possible that the virus will return in its current form or even mutate into a more virulent virus during the fall cold and flu season.

Adams and Reese LLP has prepared detailed policies, protocols, and other communications for clients to address these issues. As a service to all our clients, we advise you of our belief that it is essential for employers to take the following actions at a minimum:

1. Determine Exposure Risk. Businesses involved in food service, retail, health care, hospitality, banking and other industries that deal with a high volume of people in relatively close quarters are particularly vulnerable. Considering the widespread public awareness regarding swine flu, business and premises owners that delay in implementing or altogether fail to implement measures to reduce the potential for exposure will be much easier targets for illness-related litigation and liability than companies who quickly undertake proactive measures. Companies should proactively analyze the potential risk of exposure and transmission inherent in their work environments and take preventive measures accordingly.
   
   
2. Institute Preventive Measures. Provide employees with basic sanitation supplies suitable to your industry. Request in writing that cleaning services employ additional safety measures to sanitize worksites. Discourage travel to known areas with high infection rates. Require those with swine flu symptoms to obtain medical clearance before returning to work. Require symptomatic employees to stay at home.
   
   
3. Implement a Policy. Companies should put in writing the preventive measures adopted and ensure that a copy is provided to each employee and train employees on what will be expected of them. Companies should have employees sign written acknowledgements confirming their receipt of any written policies and procedures and agree in writing to comply with such measures.
   
   
4. Be Aware of Potential Insurance Ramifications. Although it may be unsettled as of today, pandemic illnesses could be compensable under state workers' compensation laws if an employee's job exposes greater risk of illness than the risk to the general public and the employee's job duties caused the illness. If an employee with pandemic illness believes the illness is work-related, employers should (1) have the employee complete an Accident Report; (2) complete a First Report of Injury or Illness form; and (3) promptly submit the information to the workers' compensation carrier for further investigation. It is also possible that liability insurers may have additional suggestions and/or requests. In order to avoid potential coverage issues, businesses should consider contacting liability insurers to ensure compliance with all policy-related obligations.

By implementing a cohesive strategy to reduce the risk of exposure to swine flu in the workplace, businesses will significantly reduce the risk of civil liability. Further, employees, clients and customers will appreciate your concern for their safety and well-being.

Below are links that provide additional information regarding the swine flu virus:

1. Briefings by the Centers for Disease Control and Prevention:
   • http://www.cdc.gov/h1n1flu/press/
   
   
2. Discussion of the unpredictable nature of influenza viruses and the possibility of swine flu outbreak in the fall:
   • http://www.cdc.gov/media/transcripts/2009/t090511.htm
   
   
3. Discussion of swine flu risk and treatment options for pregnant women:
   • http://www.cdc.gov/media/transcripts/2009/t090512.htm
   
   
4. Recommended disinfectants, sanitizing products and respirators:
   • http://www.epa.gov/oppad001/influenza-disinfectants.html
   • http://www.cdc.gov/h1n1flu/masks.htm

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