Posted by Mark Brousseau
Business managers following swine flu's (H1N1 influenza) spread and monitoring government advisories should prepare to handle difficult legal issues triggered by an escalating epidemic or worst-case pandemic scenario, says New York litigation partner Kenneth W. Taber, head of Pillsbury's Disaster Planning and Liability Management Team, which advises the City of New York and other clients on emergency and disaster response plans for natural disaster, epidemic, terrorism and other crisis scenarios.
"Epidemics pose particularly difficult issues because unlike a hurricane or terrorist bomb, the scope of impact is not immediately clear and changes rapidly," Taber explains. "Compared to asking when a fire can be extinguished or electricity restored, diseases present companies with more complicated questions, such as whether they can lawfully demand employees provide proof of vaccination, bar sick employees from the office or compel healthy -- but fearful -- staff from reporting for work."
Taber adds that even well-intentioned companies seeking to accommodate employees' concerns and assist health authorities can inadvertently incur liability if they distribute medications, for example. They can also run afoul of provisions in the Health Insurance Portability and Accountability Act (HIPAA) and Americans with Disabilities Act (ADA) if certain health records are improperly shared or flu-infected workers allege discrimination. He notes that some organizations, such as federally-supported universities and government contractors are subject to different regulations apart from other areas of the private sector.
Because disease outbreaks are difficult to identify and contain quickly and can persist over time with varying effects, Taber advises clients to take an integrated approach to planning for all manner of related business disruptions, from reduced staff levels to constricted supply chains, missed deadlines and service failures.
"After addressing their top priority of human health and welfare, organizations have to look at what could happen in adverse impact; if an offshore parts supplier or service provider is in a particularly hard-hit region and incapacitated or if the company itself is unable to serve customers due to an epidemic -- liabilities and legal implications could vary," Taber explains. "Quarantines can cause significant disruptions. Clients need to determine whether they will follow voluntary quarantines affecting their workforce, or how tightened border screening of potentially contaminated goods and travelers will affect their logistics and business travel requirements. These questions are best asked in advance, before costly delays and interruptions force the issue."
Taber recommends that organizations routinely review, revise and test their emergency response plans to ensure they reflect both changing needs of the organization and accepted risk and compliance levels.
"Epidemics lead many businesses to cancel travel and encourage employees to work from home -- putting higher demand on computer systems and IT staff as a result," he notes. "Unless management has adequately planned for and practiced secure tele-commuting, there could be data privacy risks if employees are untrained on following office technology policies outside their cubicles or use improperly configured laptops -- these are hard problems to fix once employees are stuck at home."
What do you think? Post your comments below.