Wolff and Samson

Reproduced with permission from Occupational Safety & Health Reporter, Vol.36, No.15 (Apr.13,2006), pp.347-351. Copyright 2006 by The Bureau of National Affairs, Inc. (800-372-1033) or at http://www.bna.com

I. Introduction.

By now, most people are familiar with the " avian influenza," or "bird flu" virus (the "virus" or "disease") that has been reported throughout Asia and most recently in Europe. Although the United States has yet to experience a human outbreak of the virus, it is only a matter of time before the disease surfaces. Given high density areas such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

Importantly, an increasing focus of countries that have experienced a bird flu outbreak is the development of protocol to reduce the risk of infection in the workplace. Due to millions of Americans going to work every day, the risk of the virus spreading among coworkers is almost inevitable. With this in mind, the employer must playa key role in infection prevention and control. Essentially, basic infection control measures implemented and enforced at the workplace are the cornerstone in preventing and managing the transmission of the virus. Employers should consider that these preventative measures also greatly reduce the risk of serious legal implications in the event of an outbreak among employees. In considering the following discussion, employers will be able to better understand the nature of the bird flu, its potential legal consequences, and the ways in which it can proactively prevent and/or control employee infection.

II. Background.

A. What is Avian Influenza? The Avian Influenza Type A (also identified as H5N1), is an infection that usually affects wild birds, but can cause serious disease among poultry, such as chickens.1 These "Type A" viruses that primarily affect birds are genetically indistinguishable from the influenza viruses that are contracted by humans.² There are several different subtypes of Avian Influenza Type A viruses, including H7 and H5.³ These vary in virulence from "low pathogenic" to "highly pathogenic," depending on the genetic features of the virus and the severity of the illness they cause in poultry.⁴ Of the few avian influenza viruses that have crossed the species barrier to infect humans, H5N1 has contributed to the largest number of detected cases and severe disease and death in humans.⁵

Initially, H5N1 caused only mild flu symptoms in birds, but after several months of circulation, it turned into to a highly pathogenic form that has lead to the death of chickens within 48 hours.⁶ Moreover, the virus has developed an ability to pass directly from infected birds to humans.⁷ Since 1997, an increasing number of human outbreaks have been reported.⁸ The confirmation of human cases not only threatens human populations in affected countries, it also threatens populations across the world. Given the rate of human travel as well as the increasing potential for human-to-human transmission, it is very likely that the bird flu will become a worldwide pandemic.⁹ According to the World Health Organization, a total of 105 people have died from virus as of March 24, 2006,¹⁰ and there is no evidence that the virus will stop spreading any time soon. Even though human-to-human transmission of H5N1 is currently rare, the virus has already caused bird to human infection. Thus, there is little doubt that given enough time, the virus will become virulent enough to spread among the human population.

The ability for the avian flu to emerge into a human pandemic will likely be caused by two mechanisms: reassortment and/or adaptive mutation. A reassortment occurs when a person who is already infected with human influenza comes into contact with H5N1.^ll The human and avian virus genes then coinfect the same cell and exchange genes, essentially creating a new and more tenacious infection.¹² In essence, the human serves as the mixing vessel for the virus to develop into a highly transmittable and deadly disease.

An additional mechanism of human transmission is adaptive mutation, which occurs when a healthy person is infected with H5N1.¹³ This mechanism involves stepwise changes, which happen as the virus mutates during infection, gradually allowing the virus to improve its transmissibility among humans.¹⁴ As the virus spreads throughout human populations, it is able to mutate and develop into a more aggressive form.¹⁵ Overall, the increasing numbers of reported deaths due to the avian flu demonstrate that the virus may already be evolving through reassortment and/or mutation.

B. What Are the Symptoms of Avian Influenza and Who Are Most at Risk? Once a human contracts the virus, the symptoms have ranged from typical human-like influenza symptoms such as fever, extreme fatigue, coughing, sore throat, muscle and joint aches to eye infections, pneumonia, severe respiratory diseases, and other potentially life-threatening complications.¹⁶ Symptoms usually begin within 2 to 3 days of exposure and depend upon the specific subtype and strain causing the infection.¹⁷ Only a laboratory test can confirm the virus in humans.¹⁸

Those at risk of contracting the virus are mainly individuals who work with wild animals or poultry, health care professionals, frequent travelers, and airline/ transportation industry personnel. It should be noted that the virus does not seem to discriminate in the sense that healthy, sick, young, and old people all have a significant chance of infection.¹⁹

Currently, H5N1 is resistant to anti-viral medications such as amantadine and rimantadine, normally used for treating influenza.²⁰ Two other viral medications, oseltamivir and zanamavir, have shown some promise in treating the bird flu, however additional studies on their efficacy are being conducted. ²¹ At this time, no vaccine has been developed to prevent H5N1, yet studies are presently under way.²²

C. How is Avian Influenza Transmitted? Direct contact with infected poultry, or surfaces and objects contaminated by their feces is considered the main route of human infection.²³ To date, most people that have contracted the virus live in rural/periurban areas where many households keep small poultry flocks, which often roam freely inside homes.²⁴ Regardless, as infected birds shed large quantities of the virus in their feces, opportunities for exposure to infected droppings or to environments contaminated by the virus are abundant under these conditions.²⁵

Once a human contracts the virus, there is a potential for it to spread from person-to-person (depending upon whether the virus reasserts or mutates itself into a form transmittable among humans) when a person talks, coughs or sneezes.²⁶ It can also spread through hand or face contact or through coming in contact with something that an infected person has already touched.²⁷ Alarmingly, research has indicated that the virus can remain viable for up to 30 days in certain circumstances of contamination.

III. What Are the Legal Ramifications That Employers Should Consider?

There are several employment and other laws which may be directly involved with this disease and must be considered by employers. These are as follows:

A. Occupational Safety and Health Act. Under the Occupational Safety and Health Act ("Act" or "OSHA"), the employer has a legal obligation to provide a safe and healthful workplace. One of the agency's enforcement mechanisms is the ability to issue citations with monetary penalties to employers. According to Section 5 of OSHA, commonly referred to as the "General Duty Clause," it requires that an employer protect its employees against "recognized hazards" to safety or health which may cause serious injury or death.

Given that OSHA does not have a specific regulation which deals with the avian flu, the Occupational Safety and Health Administration (the "Agency") will utilize the General Duty Clause. In order to determine the scope of the employer's obligation under the General Duty Clause, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources. In this case, OSHA would rely upon recommendations issued by the Centers for Disease Control ("CDC") , the National Institute for Occupational Safety and Health ("NIOSH"), or other similar resources. If the Agency can establish that employees at a worksite are reasonably likely to be "exposed" to the avian flu (e.g., through handling poultry, working in the transportation industry requiring travel to affected countries, serving as healthcare providers, etc.), OSHA will likely require the employer to develop a plan with procedures to protects its employees.

Under the Act, the employer may also have additional legal obligations to the employees of another employer who may come to the workplace and may potentially be exposed to the hazard (in this case to avian flu carriers). OSHA may utilize its authority under the "multiemployer workplace doctrine" to issue citations to the host employer when personnel of another employer are exposed. In these instances, citations can be issued by the Agency to the host employer if another employer's staff members are exposed or if the host employer created the hazard or exposed the other employees to the hazard. The host employer or the controlling employer at the site will ultimately be held responsible to correct the hazard.

OSHA will expect the responsible employer to develop a program based upon a "hazard assessment" of potential exposure at the worksite (provided in more detail below), such as conduct employee awareness training regarding the hazard; develop procedures, including the use of personal protective equipment (e.g., masks) if necessary to prevent infection and transmission; develop a means of reporting infection and providing medical surveillance for employees who contract the disease; maintain appropriate documentation of the foregoing; preserve of medical records; and maintain an OSHA 300 Log for illnesses which are occupationally related.

B. Worker's Compensation-Disability Benefits.In the event that an employee contracts avian flu as a result of occupational exposure, (in other words, the illness "arises out of and in the course of employment" which the employee must prove with competent medical evidence), the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment, and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should evaluate whether it has adequate worker's compensation insurance coverage and coverage limits that include occupational diseases.

If an employee contracts the disease and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that the avian flu is going to involve significant medical issues, such as determining (I) whether the employee is infectious, (2) what type of treatment is necessary, (3) whether the employee presents a health risk to others and, (4) when the employee can safely return to work. Therefore, it is essential that the employer identify a competent medical professional with expertise in infection control who can advise it on all medically-related issues, including worker's compensation.

C. Family and Medical Leave Act. Under the Family and Medical Leave Act ("FMLA"), employers who have more than 50 employees are required to provide up to 12 weeks of unpaid leave to a qualified employee who has a "serious health condition." An employee is also eligible under the FMLA in the event of a "serious health condition" affecting its spouse, child, or parent(s).

If an employee contracts the avian flu, this disease will most likely be considered a "serious health condition" under the FMLA warranting the unpaid leave. Similarly, if an employee's parent, spouse, or a child contracts the disease, this will likely be a qualifying event entitling the employee, with physician's documentation, to utilize leave time to care for such an immediate family member.

It is certain that issues may arise if the employee contracts the disease but is able to continue working while potentially exposing other employees to infection. Since the CDC appears to recommend removal of such individuals from the workplace to prevent transmission of the disease, the employer may have to consider placing the employee on an FMLA leave or providing some other form of leave despite the employee's desire to continue working.

If the employee exhausts the entire 12 weeks of FMLA leave, and is unable to return to work at that time, the employer may wish to consider additional unpaid leave for the employee, although such leave would be outside of the FMLA required reinstatement rights.

D. Americans with Disabilities Act. The Americans with Disabilities Act ("ADA") provides certain protections to employees who may have physical, mental, or emotional "disabilities" but who are otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment which substantially limits one or more of the major life activities of an individual(e.g., breathing, working, speaking) which is chronic in nature. Thus, avian flu, which is expected to involve temporary infection, and hopefully recovery, would not appear to qualify as a "disability."

The ADA may become a factor, however, if an employee develops a disability as a result of the disease and cannot return to their former work duties because of such impairment. The employer must then be prepared to engage in an "interactive process" with the employee which involves a case-by-case dialogue regarding the employee's ability to return to work, any work restrictions, what accommodations may be available which do not cause undue hardship to the employer or whether the employee's disability presents a direct threat to the health or safety of the employee or other employees. Again, it is recommended that employers engage competent medical advice regarding any accommodations which may be warranted as a result of the long term effects of this disease.

E. Premises Liability. Under general common law principles in most jurisdictions, a landowner (sometimes the employer) who allows third parties to enter upon its premises for business or related purposes (such as clients, vendors, contract employees), owes these individuals a duty of "reasonable care" to protect them against hazards at the premises which are not "open and obvious." In the case of avian flu, if the landowner is (or should be) aware that there are infectious persons at the premises (whether its own employees or tenants) who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may become contaminated with avian flu, the landowner may have an obligation to prevent such contamination through enhanced measures.

In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.

What Should the Employer Do to Address the Threat of an Avian Influenza Outbreak?

As established above, employers have a common law and statutory duty to provide a safe and healthy workplace for their employees. Thus, employers must take all reasonable steps to prevent employees from being exposed to the virus. To accomplish this, employers should develop policies and procedures in order to provide the requisite duty of care to employees. Although the contents of such policies and procedures are largely governed by the nature of the employer's business operations, there are still some common measures that employers should consider. It is important to remember that these measures not only protect the employer and their employees from the repercussions of an avian flu outbreak, it also serves to prevent panic and chaos. If employees remain calm and aware in the event of an outbreak, plans implemented to address such a crisis will run smoothly and as anticipated. Employers should therefore consider the following measures:

Sanitation.

-Provide and maintain a clean work environment through regularly disinfecting office equipment, door knobs, and other commonly exposed items. The use of products such as Lysol and/or bleach is recommended.

-Maintain restrooms in a sanitary condition, which includes providing an adequate supply of antibacterial soap, disposable towels, and/or hand-dryers.

-Make sure that there is proper ventilation throughout the office, which includes changing the filters in air conditioning systems and opening windows, if possible.

-Provide, if possible, instant drying hand sanitizer or disinfecting towelettes for each employee to use at the office.

-Provide an adequate and easily accessible supply of sanitary gloves, goggles, alcohol swabs, bottled water, masks, and tissues on hand. Make sure that your medical kit is up to date and fully stocked.

Communication.

-Support staff in adopting good personal hygiene while at work through posting signs in restrooms and eating areas as well as issuing interoffice memoranda (in several different languages depending on the workplace) encouraging the exercise of regularly washing hands, following coughing and sneezing etiquette, and disinfecting anything that may have been in an area where someone had been coughing or sneezing (such as the person's office or personal space).

-Hold a series of informational meetings for employees in order to educate them on the nature of the avian flu, its symptoms and how it is contracted. Inform them to report to the employer or other designated person immediately if they experience any related symptoms of the virus. Encourage employees on an annual basis to receive a vaccination against the seasonal flu and to go for regular check-ups. Keep a log of those that receive annual flu vaccinations. Inform employees of areas where there is the highest risk of infection and encourage them to avoid travel to such places. Assure employees that the policies and procedures being implemented are for their well-being and that their compliance is mandatory as well as appreciated.

-Keep employees up to date with the current status of the virus, any major events or developments, and the policies and procedures which are being implemented to protect them. Provide each employee with access to available avian flu hotlines and dedicated Web sites (through creating sustainable links on office computers) to enable them to further inform themselves and their families.

-Require sick employees to remain at home and to not return to work until fully recovered.

-Should the employer suspect or know that an employee may be infected with the virus (he or she displays symptoms such as a fever, running nose, cough, and/or extreme fatigue), while at the workplace, immediately separate him or her from the rest of the employees. Have a designated "medical quarantine room"²⁸ for the potentially infected employee to report to. Create a plan for dealing with the care and transport of an infected employee. Assist the employee in going to the nearest emergency room or to their general physician. Make sure to have a plan to deal with pifeventing further transmission of the infection.

-Instruct employees to immediately inform the employer or designated on-site health coordinator in the event they are diagnosed with the virus.

-Inform all individuals (in the event of an infected employee) such as vendors, suppliers and customers of the business that they may be at risk of infection. Encourage them to seek medical attention immediately if they start showing signs of the virus.

-Require employees to disclose situations which may have caused a risk of infection to others such as travel to affected areas, contact with potential or known sufferers of the disease, or the handling of poultry/wild
animals.

-Inform area hospitals, local, federal, and state public health agencies, and emergency responders in the event that an employee is infected.

Recordkeeping.

-Maintain an updated list of employees who have taken sick leave.

-Maintain a working list of area hospitals, local, federal, and state public health agencies, and/or emergency responders.

-Identify and keep a record of personnel who may have had contact with people affected by the virus, i.e. those who may have relatives in rural parts of Asia or other areas where there have been documented outbreaks of the virus.

-Maintain a list of each employees' contact persons in the event that they show signs of the virus. Make sure that immediate family members are notified of the employee's condition. Instruct them to seek medical attention immediately.

-Maintain a current list of all employees, vendors, suppliers, and if possible, regular customers, who visit the worksite in the event of infection.

-Maintain a daily list of all employees and/or other individuals who are present at the workplace. In the event of an infection, ensuring that everyone is accounted for is key.

Planning.

-Formulate a preparedness plan in the event of nationwide pandemic. Companies should therefore consider designating certain employees and response teams with definitive roles and responsibilities to assist in infection containment and control, host several training exercises and drills to test the plan, identify employees with special needs, and make sure to incorporate the requirements of such individuals into your plan. Provide written copies of your plan to all personnel and inform them that their cooperation is essential.

-Share your plan with insurers, area health care facilities, local, state and federal public health agencies and/or emergency responders and educate yourself on their capabilities, resources, and contingency plans.

-Create policies for employee compensation and absences due to sick leave that are non-punitive and liberal. Include policies addressing when an ill person is able to return to work once they are free of infection.

-Establish an alternative for employees to work from home in the event of a workplace outbreak. This includes providing essential employees with remote voicemail and computer access, and stocking the office with extra portable computers for people to use outside the office. Identify critical inputs such as the raw materials, suppliers, subcontractor services/products, and logistics that are required to maintain business operations during a pandemic.

-Establish alternative work plans, such as operating the business at an alternative location, providing sufficient communications and technology infrastructures as needed to enable employees to telecommute and have remote computer access, and a system for notifying customers, vendors, suppliers, etc.

In consideration of the above, an employer will now be able to use the appropriate resources to implement and enforce a well rounded and comprehensive plan of infection prevention and control. However, in order to develop the requisite legal and workplace procedures for dealing with the disease, it is recommended that employers contact a member of the legal profession to assist you in drafting the appropriate plan and procedure to best suit its business practice. Contacting a health professional to provide medical guidance and education is also suggested.

V. Where Can I Find Additional Information on the Bird Flu?

A. Informational Websites.

-Center for Disease Control-http://www.cdc.gov.

-CDC Information for Specific types of Employees-http://www.cdc.gov/flu/avian/groups.htm.

-OSHA-http://www.osha.gov.

-The World Health Organization-http://WWW.who.int.

- PBS/Frontline News-http://wWw.pbs.org/wnet/
wideangle/shows/vietnam/video.html.

-CDC Emergency Response Hotline for health employers-1- 770-488- 7100.

-Department of Health and Human Services-http://
www.hhs.gov/pandemicflu/plan/supl.html.

Jennifer L. de Lyon is an associate in the Environmental practice at Wolff & Samson, PC, a 110-lawyer firm based in West Orange, New Jersey. Ms. de Lyon can be reached at: delyon@wolffsamson.com or phone number:(973)530-2171.

ENDNOTES

Center for Disease Control,Guidelines and Recommendations, Interim Guidance for Airline Flight Crews and Persons Meeting Passengers Arriving from Areas with Avian Influenza, at http: www.cdc.gov/travel/other/avian_flu_ig_airlines_021804.htm (last updated 3/3/06).
Center for Disease Control, Interim Recommendations for Infection Control in Health Care Facilities Caring for Patients with Suspected Avian Influenza, at http://www.cdc.gov/flu/avian/professional/infect-control.htm (last updated 6/27/04).
Id.
Id.
Center for Disease Control,What You Should Know
About Avian Flu, at http://www.cdc.gov/flu/avian/gen-info/ facts.htm (last visited 3/17/06).
World Health Organization,Avian Influenza: assessing the pandemic threat, 7, available at http://www.who.int/csr/disease/influenza/WHO_CDS_2005_29/en/(last visited 3/28/06).
Id.
Supra note 2.
Supra note 6.
The World Health Organization,Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1) Reported to WHO, at http://www.who.int/csr/disease/avian_influenza/country/cases_table_2006_03_24/en/index.html.
Supra note 6, at 9.
Id.
Id.
Id.
Id.
Center for Disease Control,Questions and Answers about Avian Influenza (Bird Flu) and Avian Influenza A(H5N1) Virus, at http://www.cdc.gov/flu/avian/gen-info/qa.htm(last visited 3/22/06).
Id.
Id.
Supra note 6, at 6.
Supra note 5.
Id.
Id.
World Health Organization, Avian Flu Frequently Asked Questions, at http://www.who.int/csr/disease/avian_influenza/
avian_faqs/en/index.html (last visited 3/22/06).
Id.
Id.
Health and Safety Executive, Pandemic Flu, at http://www.dh.gov.uk/pandemicflu.
Id.
Title 42 United States Code Section 264 (Section 361 of the Public Health Service [PHS] Act) gives the Secretary of Health and Human Services (HHS) responsibility for preventing the introduction, transmission, and spread of communicable diseases from foreign countries into the United States and within the United States and its territories/possessions. This statute is implemented through regulations found at 42 CFR Parts 70 and 71. Under its delegated authority, the Centers for Disease Control and Prevention (CDC) is empowered to detain, medically examine, or conditionally release individuals reasonably believed to be carrying a communicable disease.

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