An influenza outbreak of swine origin continues to grow in the United States and internationally—and the Centers for Disease Control predicts the number of related hospitalizations and deaths will rise.

While the threat from the swine influenza A (H1N1) virus is not fully known, employers should review and update their disaster contingency plans as a precaution. Employers who do not have disaster contingency plans may wish to implement measures to protect their business and employees in the event of a pandemic.

In updating or preparing disaster contingency plans, employers should be aware of benefit and employment issues that may be triggered. Such considerations will be particularly important if the swine flu rises to the level of a worldwide health crisis.

Contingency Plan Components

Although illness-related disaster contingency plans will vary among employers based on business needs, most plans focus on:

• Business continuity planning—cross training employees and building a telecommuting infrastructure to permit employees to work from home.
• Travel restrictions/evacuation preparation—monitoring conditions throughout the world to determine when to evacuate expatriates and when to restrict business travel to certain locations.
• Procedures for detecting and mitigating the spread of illness in the workplace.

Potential Legal Issues

As an overriding principle, workplace safety law requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm. Contingency plans to protect employees during an illness outbreak can, however, trigger benefit and employment law issues.

HIPAA and Other Privacy Law Considerations

Employers must be concerned, for example, about how they will detect swine flu symptoms among employees and communicate information to affected employees and others without violating applicable privacy laws. In general, HIPAA privacy rules will not govern such uses and disclosures of health information related to the swine flu, unless employers obtain such health information from their health plans.

Further, HIPAA may permit uses or disclosures of protected health information that are necessary for public health reasons—that is, to prevent or control the spread of swine flu. Employers should also check state medical privacy rules regarding such issues.

Leave Policies

Employers may need to review their leave policies to see whether changes are necessary to permit extended leaves, and continuation of benefits and pay during such leaves, in order to encourage sick and/or exposed workers to stay home.

Employee Assistance Plans

Employers may want to consider starting an employee assistance plan (EAP) to address stress and emotional issues involved with pandemics, and as an additional resource to assist employees with pandemic preparation. Employers who already have an EAP should check to see if plan resources are available to assist them and their employees with preparation for a swine flu pandemic.

Employment Law Issues

Employers will also need to consider Family Medical Leave Act and Americans with Disabilities Act concerns affecting their disaster contingency plans.

As swine flu developments unfold, the CDC and other officials will issue new recommendations and guidelines. Faegre & Benson will monitor these developments and advise clients of additional legal considerations that may be triggered.