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Labor & Employment Law

Swine Flu Requires Look at Workplace Disaster Policies

Posted Apr 29, 2009 2:16 PM CDT
By Debra Cassens Weiss

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The swine flu virus is keeping lawyer Priscilla Keith busy as she contemplates how the Indiana county that includes Indianapolis would deal with an outbreak, if one occurs there.

Keith is chairman of the Public Health and Policy Interest Group of the ABA Health Law Section. She also is general counsel of Marion County, Indiana’s Health and Hospital Corp., a quasi-governmental body created in 1951 to manage the county’s health department and hospital.

On the job, Keith must deal with public health law issues, such as due process rights for anyone who would need to be quarantined after contracting the virus. (Indiana law spells out the requirements.) But she is also encountering employment law issues that aren’t necessarily unique to the government setting.

Keith spoke to the ABA Journal as a new report emerged of the first death in America from the virus with the scientific name H1N1—a 23-month-old Mexican boy who died Monday while undergoing treatment at a Houston hospital. In Chicago, a public school on the city's north side closed its doors after a student caught a virus that was thought to be swine flu. No cases have been confirmed in Marion County, Ind.

Keith says it’s important for organizations to have an emergency management plan to deal with disasters such as a flu epidemic. The policy should be reviewed by lawyers as well as human resources staffers. “So when you go to implement those policies you are not doing it haphazardly and flying by the seat of your pants,” she says.

Keith outlined some of the employment issues in an interview with the ABA Journal. They include:

• How to keep an essential workforce on the job. If swine flu were to become a pandemic, 40 percent of the workforce could be sidelined by the virus. Employers may want to provide vaccines or medicine for employees. They may also want to provide child care for workers with sick children at home. Employers also should consider whether employees who fear exposure to the virus can continue to work at home by telecommuting.

• Whether to provide workers' compensation. Employers should evaluate whether they will provide workers' compensation for employees or volunteers who become ill.

• When to pay workers to stay home. Employers who ask workers exposed to the swine flu virus to stay home may want to pay for the time off.

• The effect of union agreements. Do they have provisions that spell out whether they continue to be in force during an emergency?

In the medical context, Keith is considering whether volunteer medical workers should be credentialed and provided with malpractice insurance.

Yet another consideration is the Family Medical Leave Act, according to employment lawyer Edwin Foulke, former head of the U.S. Occupational Safety and Health Administration and a partner at Atlanta's Fisher & Phillips. Foulke told the National Law Journal that the law allows up to 12 weeks of unpaid leave for employees to care for themselves or family members.

Kenneth Taber, head of the disaster planning and liability management team at Pillsbury Winthrop Shaw Pittman, cautions in a press release that companies could incur liability if they distribute medications without complying with applicable legal requirements. They also could violate the Health Insurance Portability and Accountability Act and state law if certain health records are improperly shared or not properly maintained.

Taber’s legal team advises New York City on disaster planning.

The ABA Health Law Section has links to resources on the swine flu at its website.

Previous coverage at ABAJournal.com:

Swine Flu Fear Prompts Some Changes in Law Firm Protocol

Will Swine Flu Merit Quarantines? If So, New Laws Give States Authority

Related coverage:

Houston Chronicle: "First U.S. swine flu death is Mexico City boy in Houston"

New York Times: "The Naming of Swine Flu, a Curious Matter"

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