The World Health Organization (WHO) has raised the Pandemic Threat Level for swine flu influenza A(H1N1) to phase 5 out of 6 levels, signifying that human-to-human transmission is occurring all over the world. The spread of swine flu prompted the WHO to raise the alert level to 5 and warn that the world may see pandemic conditions associated with the swine flu (though pandemic conditions are not inevitable). At the same time, Texas Governor Rick Perry issued a disaster proclamation, allowing the state to avail itself of federal reimbursement associated with the cost of implementing emergency protective measures against the outbreak.

There are presently 109 laboratory-confirmed human cases of swine flu in the U.S. with only one fatality involving a Mexican infant transported to the U.S. Some of the swine flu cases in the U.S. have been linked to travel to Mexico. The Centers for Disease Control (CDC) is concerned that continued travel by U.S. travelers to Mexico presents a serious risk for further outbreaks of swine flu in the U.S. Consequently, employers should avoid unnecessary employee travel to Mexico at this time. Employees who are ill should delay international travel. Employees returning from international travel who develop symptoms of the swine flu should be encouraged to seek prompt medical attention. Individuals returning from international travel or affected areas within the U.S. should monitor their health closely for seven days. If the swine flu symptoms listed below appear, the employee should seek immediate medical attention.  

The symptoms of swine flu are similar to the symptoms of seasonal flu and may include fever (greater than 100°F or 37.8°C), sore throat, cough, stuffy nose, chills, headache, body aches and fatigue. Some people have reported diarrhea and vomiting associated with swine flu. Severe illness (pneumonia and respiratory failure) also has been reported with swine flu infection. As is the case with the traditional seasonal flu, swine flu may cause a worsening of underlying chronic medical conditions.

To prevent the spread of swine flu, individuals should:

Avoid contact with ill persons; When coughing or sneezing, cover the nose and mouth with a tissue or use the sleeve (if no tissue is readily available); Discard tissues in a trash can; After coughing or sneezing, wash hands with soap and water or use an alcohol-based hand gel (with at least 60 percent alcohol) when soap and water are not available; and Avoid touching the eyes, nose or mouth. Individuals who are ill with the flu should avoid close contact with others as much as possible. Sick employees should be encouraged or directed to stay at home and not go to work, school or travel, avoid gatherings of people and seek medical care. There are antiviral medications for the prevention and treatment of swine flu that can be prescribed.

The CDC has recommended that persons with suspected swine flu infection self-isolate for seven days, or for 24 hours after symptoms subside, whichever is longer. Children with influenza may be infectious for up to ten days after the onset of illness while adults are thought likely to be infectious for five to seven days.

Employers should consider revising their sick leave policies to encourage employees to remain at home for the CDC's recommended self-isolation periods. Health departments in areas where persons have been affected with swine flu may recommend more rigid exclusion policies; consequently, employers also should consult with their local health departments.

Employers may, however, be required to act to avoid spreading swine flu among their workforce. As an initial preventative measure, employers should inform employees of the preventive actions described above and assure that workplace areas are properly cleaned on a regular basis and, if necessary, disinfected. Frequently touched surfaces and commonly shared items should be cleaned at least daily and when visibly soiled with an Environmental Protection Agency (EPA) registered household disinfectant labeled for activity against bacteria and viruses, an EPA-registered hospital disinfectant, or EPA-registered chlorine bleach/hypochlorite solution, as appropriate.

Employees who have been absent from work for the swine flu may be required, under certain circumstances, to provide evidence from their medical provider that they no longer are ill or contagious. Employers generally may require employees to undergo medical examinations if the employer has a reasonable belief, based on objective evidence, that the individual employee's medical condition either impairs his/her ability to perform essential job functions, with or without a reasonable accommodation, or poses a direct threat to safety in the workplace.

Under federal regulations, a "direct threat" to workplace safety refers to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Whether an employee poses a threat must be based upon an assessment of the individual employee's risk to the workplace. An employer may not base a request for medical examination upon generalized concerns about swine flu risks or fears of a pandemic. If an employee takes leave for swine flu under the Family and Medical Leave Act (FMLA), an employer may require certification that the employee can resume work and perform his/her essential job functions.

To assist employers in their efforts to prepare for the effects of the swine flu, HHS and the CDC have developed several checklists for businesses.

One area that deserves consideration is the insurance coverage an employer has to cover losses related to a pandemic. Business interruption insurance should be reviewed to assure that it covers a facility shutdown caused by worker illness. It is important to evaluate this in the context of a governmental order to close the facility and also in the context of a self-initiated shutdown at the "suggestion" of a governmental agency. Many business interruption policies exclude these types of events, without a specific endorsement. Properly underwritten, a business interruption policy can cover losses resulting from pandemic illness including the inability to continue operations due to excessive employee absenteeism, loss of business due to fear of public gatherings and government actions, including travel restrictions.

The swine flu also may generate interesting workers' compensation issues. Workers' compensation policies generally do not cover illnesses unless they are contracted "out of the course of employment." Swine flu illnesses may, in certain cases, be deemed to be within the course of employment. For example, if an employee traveling on business were to contract the virus in an area of an outbreak and spread it to workers upon returning, the exposure may be considered in the course of employment. Healthcare workers also would be at risk of contracting the illness on the job. However, workers' compensation coverage can vary from state to state, as some states restrict which occupational diseases are covered.

If a workplace has to be decontaminated, property insurance coverage likely will not cover the costs, unless the employer has specific coverage for infectious diseases, which is not a customary coverage.

Employers and businesses that don't plan adequately to respond to the risks associated with a pandemic, putting others at risk, may face legal action. According to some in the insurance industry, over three-quarters of companies have inadequate plans for coping with a flu pandemic and, of those, a third of businesses have no strategy at all, while 14 percent have only rudimentary contingency plans.

Corporations should develop plans that are consistent with their size, their industry and the perceived risks to best limit their exposure. Healthcare providers may be at particular risk if their plans are inadequate in an absolute sense, or relative to their peers. Such employers should consider, for example, whether enough masks were obtained? Are the masks effective against the swine flu virus? Did they obtain enough antiviral medications? Were standards of cleanliness sufficient?

Now is the time to prepare. Employers should educate their employees, review their policies and procedures and remain flexible as the level of risk changes. Baker Hostetler has extensive experience in guiding clients through the multiplicity of legal issues associated with emergency preparedness by healthcare institutions.