As a regular business practice, employers should routinely anticipate and prepare for emergencies to ensure minimal interruption to their business. The World Health Organization recently raised the worldwide pandemic alert level for transmission of influenza H1N1 to Phase 5, a warning that there is a “strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of planned mitigation measures is short.” Therefore, employers should use this time to review their contingency and emergency response plans. Consider taking the following steps in collaboration with your management team:

Structure an Emergency Management Plan: A company’s plan for responding to pandemic flu should be compatible with existing emergency management plans, including any workplace safety plans such as a California Injury Illness Prevention Program. Consider outlining a chain-of-command structure to ensure continued operations, identifying essential positions and personnel necessary to sustain business operations. Establish a plan for where and how executives can continue to manage the company during times of limited access to company facilities. Plans which are designed to be implemented in stages and set forth the thresholds for implementing those stages can allow the company to plan for best to worst case scenarios.

Develop an emergency communication plan to facilitate prompt communication with employees through alternative means. Employers should continually update all employee contact information and consider developing a tracking system for employees that report flu infection. The government is posting continuing guidance for employer emergency planning at: http://www.pandemicflu.gov/plan/workplaceplanning/index.html. Management personnel responsible for preparedness should monitor this web site for the most up-to-date information.

Review and Revise Company Policies That Could Be Affected by Pandemic Flu: Company policies that should be reviewed include attendance and leave policies, telecommuting policies, and vacation or paid time off policies. For example, employers should consider offering a telecommuting option to employees. However, precautions should be taken to ensure that network security is maintained and reasonable restrictions are placed on access to trade secret information. Additionally, companies must take steps to ensure employees are paid for all time worked and all the recordkeeping requirements of the federal and state wage and hour laws are met.

Attendance policies in place may penalize employees who take excessive sick time off, and therefore need to be temporarily modified. The official government recommendations are that employees should not report to work and children should not attend school if flu symptoms are present. Moreover, several schools have closed in response to student infection and the government has advised that children from affected schools should not attend substitute daycare to prevent spread of the virus. Employers should consider issuing temporary policies allowing for unpaid time off balancing public health safety, business needs and employee concerns. For example, allowing employees to borrow against expected future time off should be evaluated to encourage infected individuals to stay away from the workplace, reducing the risk of transmission to other employees.

Non-essential company travel may need to be restricted. Employers should monitor the State Department and Centers for Disease Control web sites to stay current on travel advisories. Additionally, employees may refuse to travel even in absence of a government issued travel advisory. Any disciplinary action taken against employees for such refusal should be carefully considered as such action may be in violation of state and federal laws.

Federal and State Family Leave Laws Remain Applicable Even in the Face of Mass Employee Absences: The Family Medical Leave Act (“FMLA”) and corresponding state laws give workers up to 12 weeks of unpaid leave to care for a family member or themselves for certain employees. Employers should be cautioned that the FMLA does not currently limit an employer’s duty to provide leave when a large percentage of its workforce simultaneously requests it. Appropriate measures should be taken to prepare for such a possibility.

Be Precise in Your Communications: It is important to educate employees about best practices to avoid the spread of the virus. Employers should direct employees to credible sources such as the Center for Disease Control or the World Health Organization so that information is accurate and timely. Care should be taken to avoid disclosing private information about employees who are ill. A scheduled system of periodic communications with updates may help avoid panic and set expectations as to when and how the company will share information. Employee assistance programs can play a valuable role, providing support for these efforts.

Special Considerations for Employers Engaged in Litigation: Companies should review deadlines in pending litigation that could be affected by extended illness or incapacitation of key witnesses. As pandemic flu progresses and the level of threat to the public becomes clearer, make alternative plans to preserve the testimony of key witnesses.