Preparing the workplace for a pandemic.

• Author: Benson, Donald W.

How should Florida employers prepare their workplaces for possible pandemics of avian influenza, Severe Acute Respiratory Syndrome (SARS), or illness spread by bioterrorism? Is the risk of a pandemic illness significant enough to merit the devotion of time and resources necessary to secure the continuity of business operations? (1) What is the employer's role in promoting quarantine effectiveness, social distancing, or preventative hygiene? This article examines 1) the nature and threat of the pandemic occurrence of a disease; 2) pertinent federal and Florida state regulations and guidelines; and 3) some of the major legal and logistical issues on which counsel should advise business clients for a possible pandemic.

Pandemic: A Global Outbreak of Disease

The U.S. Centers for Disease Control and Prevention (CDC) has set forth three conditions that must converge in order for a global outbreak of a disease to occur: 1) the emergence of a new type of virus for which humans have little or no immunity; 2) the capability of this new virus to infect and cause illness in humans; and 3) the capability of the virus to spread easily and without interruption among humans. (2)

We have experienced three influenza pandemics in the previous century: "Spanish influenza" in 1918, "Asian influenza" in 1957, and "Hong Kong influenza" in 1968. (3) The 1918 pandemic killed an estimated 40 to 50 million people worldwide. (4) Although the 1918 Spanish influenza was exceptionally deadly, the two subsequent pandemics also caused significant human deaths, including an estimated two million deaths in 1957 and one million deaths in 1968. (5)

Currently, public health officials are alarmed over the pandemic potential of the current strain of avian influenza, H5N1. Although the vast majority of avian influenza viruses do not infect humans, on rare occasions these bird viruses can infect other species, including pigs and humans. (6) H5N1 has spread by bird migration and commerce into the domestic and wild bird populations of 50 countries in Asia, parts of Europe, the Middle East, and Africa. (7) Transmission from birds to humans has been relatively rare, but 381 confirmed cases have resulted in 240 deaths in a wide geographic area including Asia, the Middle East, and Europe. (8)

An influenza pandemic occurs when a new virus subtype emerges that has not previously circulated in humans and "starts spreading as easily as normal influenza--by coughing and sneezing." (9) Public health experts are particularly concerned that H5N1 might ultimately mutate into a strain that is contagious among humans because it is an influenza A subtype and has genetic similarities to influenza strains that have spread among humans. (10) With such a genetic adaptation, H5N1 could become a new human influenza virus to which the human immune system would have no pre-existing immunity. (11)

The Threat of Pandemic Occurrence and Potential Business Disruption

The emergence of a virus that meets the biological characteristics set forth by the CDC seems quite plausible given both the rapidity with which viruses develop and change and the reality of a truly global economy. The World Health Organization (WHO) bases its current pandemic planning on three assumptions: 1) a pandemic would spread to all continents in less than three months; (12) 2) significant portions of the world's population would require medical care; and 3) medical supplies will be inadequate in all countries due to limited supplies of vaccines and antiviral drugs. (13) Based on the comparatively mild 1957 influenza pandemic, the WHO projects approximately two million to 7.4 million deaths worldwide. (14) Past pandemics have generally occurred in two or three waves, so that not all countries experienced the same level of disruption at the same time. (15) Thus, employers may face various stages of disruption caused by a pandemic--from limitations on travel to high but manageable absenteeism, to near total absenteeism and possible quarantines.

Pertinent Federal Government Regulations and Guidelines

Existing federal regulations and guidelines issued by the Occupational Safety and Health Administration (OSHA), the U.S. Department of Agriculture (USDA), and the CDC may play a key role in shaping how businesses in the United States respond to a pandemic. Government agencies may be expected to build upon this existing framework (16) in developing new regulations in response to an emerging disease threat. In a pandemic, OSHA's bloodborne pathogens standard and respiratory protection standard (17) may come into play. Additionally, the "general duty" clause of the Occupational Safety and Health Act requires employers to provide a safe and healthy work environment for employees, thus, giving OSHA broad statutory authority to issue regulations and guidelines. (18)

In February 2007, the CDC issued community standards for mitigating an...