South Carolina Lawyer
SC Lawyer, July 2009, #4.
Pandemics: Preparing Businesses for a Global Outbreak
South Carolina LawyerJuly 2009Pandemics: Preparing Businesses for a Global OutbreakBy Donald W. Benson and Alexander D. Paterra Should South Carolina employers prepare for possible pandemics of H1N1 (swine flu) influenza, Severe Acute Respiratory Syndrome (SARS) or other contagious illnesses? 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? See Joey Holleman, Swine Flu in S.C.? First outbreak might be at Newberry Academy, The State, April 28, 2009, at A1; Swine Flu: Schools tweak illness policies, at www.thestate.com/local/story/777475.html; see also China News, March 23, 2009, at www.chinanews.cn (Egypt confirms 59th human case of H5N1 influenza (avian flu); USA News and World Report Health Buzz, Jan. 7, 2009 ("Bird flu kills 19 year old woman in northern China; Bird flu has killed 248 people worldwide since 2003"); USA Today, Jan. 16, 2008 ("Bird flu has resurfaced in parts of Asia, with human deaths reported in at least four Asian countries and fresh outbreaks plaguing other nations during the winter months when the virus typically flares"). What is the employer's role in promoting quarantine effectiveness, social distancing or preventative hygiene? With the current outbreak of swine flu in Mexico and a number of reported cases in the United States, it is important that South Carolina employers devote significant resources to assessing the risks associated with a pandemic outbreak and the continuity of business operations and how the pandemic may effect their clients. See CDC, May 6, 2009. www.cdc.gov (Mexico confirms 42 deaths in their country and identifies 11,932 suspected; U.S. confirms 896 cases in over 41 states. The following countries have reported laboratory confirmed cases with no deaths - Austria (1), Canada (201), China, Hong Kong Special Administrative Region (1), Colombia (1), Costa Rica (1), Denmark (1), El Salvador (2), France (5), Germany (9), Guatemala (1), Ireland (1), Israel (4), Italy (5), Netherlands (1), New Zealand (5), Portugal (1), Republic of Korea (2), Spain (73), Sweden (1), Switzerland (1) and the United Kingdom (28); www.cdc.gov/mmwr/preview/mmwrhtml/mm5817a1.htm; www.who.int/csr/don/2009_05_07/en/print.html (U.S. declares a public health emergency to deal with the emerging new swine flu).
This article examines the nature and threat of a pandemic, its possible effects on South Carolina employers, and discusses the relevance of federal and South Carolina regulations and guidelines, including South Carolina's pandemic response plan. Finally, it highlights some of the major legal and logistical issues employers will grapple with in order to prepare for a possible pandemic.
Pandemic: a global outbreak of disease
The World Health Organization currently classifies the H1N1 (swine flu) influenza outbreak as a stage 5 on the pandemic scale. The Centers for Disease Control (CDC) sets forth three conditions that must exist for a global outbreak of a disease to occur: (1) the emergence of a new type of virus to 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. Questions and Answers about Avian Influenza (Bird Flu) and Avian Influenza A (H5N1) Virus (2008), at www.cdc.gov/flu/avian/gen-info/qa.htm. A pandemic results when these three factors converge with regard to a disease.
We have experienced three influenza pandemics in the previous century: "Spanish influenza" in 1918, "Asian influenza" in 1957 and "Hong Kong influenza" in 1968. Ten Things You Need to Know About Pandemic Influenza, World Health Organization, at www.who.int/csr/disease/influenza/pandemic10things/en/index.html. The 1918 pandemic killed an estimated 40 to 50 million people worldwide. Id. Although the 1918 "Spanish influenza" was exceptionally deadly, the two subsequent pandemics respectively caused an estimated two million deaths in 1957 and one million deaths in 1968. Id.
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." World Health Org., Ten Things You Need to Know About Pandemic Influenza, at www.who.int/csr/disease/influenza/pandemic10things/en/. Public health experts are particularly concerned that H5N1 might ultimately mutate into a strain that is contagious among humans because of its genetic similarities to influenza strains that have spread among humans. U.S. Dept. of Health & Human Servs., Centers for Disease Control & Prevention, supra note 6. With such a genetic adaptation, H5N1 would no longer be a bird virus, but a new human influenza virus to which human immune systems would have no preexisting immunity. Id. This lack of immunity makes it likely that people who contract such a type of influenza will experience more serious symptoms than those caused by normal influenza to which humans have already been exposed. Id.
In March of 2009, an isolated instance of illness in Mexico spread to become a global concern. The illness, Swine Influenza A (H1N1), has spread from Mexico and the United States to every region of the globe, and confirmed cases have been reported in Asia (Hong Kong S.A.R. and Korea), the Pacific region (New Zealand), the Middle East (Israel), Europe, and Central and South America (El Salvador, Costa Rica, Colombia and Guatemala). www.cdc.gov. Swine influenza, or "swine flu," is a highly contagious acute respiratory disease of pigs. Although swine influenza viruses are normally species specific and only infect pigs, they do sometimes cross the species barrier to cause diseases in humans. Historically, outbreaks and sporadic human infection with swine flu have been occasionally reported. Generally, clinical symptoms are similar to seasonal influenza but reported clinical presentation range broadly from asymptomatic infection to severe pneumonia. Since typical clinical presentation of swine flu infection in humans resembles seasonal influenza and other acute upper respiratory tract infections, most of the cases have been detected by chance through seasonal influenza surveillance.
On April 29, 2009, the World Health Organization raised the alert level to phase 5-level six being a full pandemic-meaning there is significant human-to-human transmission of the virus causing outbreaks in multiple locations. www.who.int/en/. This is the first time this alert level was raised above phase 3. Secretary Janet Napolitano, head of the Department of Homeland Security, told reporters that the United States is preparing as if the swine flu outbreak is a full pandemic. http://www.dhs.gov/index.shtm. President Obama...