While the initial fears associated with the virulence and effects of the H1N1 virus on the population have not materialized, the prevalence of the disease and its anticipated spread throughout the U.S. population has generated much concern over the disruptive nature the disease will have to business. In addition, questions have been raised about the ability of the U.S. healthcare system to manage the surge in resources required to treat an increased number of patients, while preventing the continued spread of the disease. The Centers for Disease Control and Prevention's (CDC) Advisory Committee on Immunization Practices has identified the following five key populations recommended to receive the vaccine when it becomes available: (1) pregnant women; (2) people who live with or care for children younger than six months of age; (3) healthcare and emergency medical personnel; (4) individuals between six months and 24 years of age; and (5) individuals 25-64 years of age who are at higher risk due to chronic disease or who are otherwise immunocompromised.

New EMTALA Guidelines

New Emergency Medical Treatment and Active Labor Act (EMTALA) guidance from the Centers for Medicare and Medicaid Services (CMS), intended to reassure the provider community and public health officials of existing flexibility under EMTALA when planning for the anticipated surge in emergency department (ED) services required to address an H1N1 outbreak, was transmitted on August 14, 2009. The CMS guidance addresses concerns voiced by hospitals about compliance with EMTALA during an H1N1 outbreak by reminding the provider community that an EMTALA-mandated medical screening examination does not need to be an extensive workup in every case and may take place outside the ED, at other sites on the hospital's campus. Redirection and logging of patients may take place outside the entrance to the ED, but CMS cautions that the individual performing the screening must be qualified to recognize individuals who are in immediate need of treatment in the ED. In fact, the guidance contemplates that hospitals may set up screening at off-campus, hospital-controlled sites and may direct the public to such sites for screening of "influenza-like illness." However, CMS makes clear that a hospital may not tell individuals who already have come to the ED to go to the off-site location for the medical screening examination. In extreme circumstances, a waiver of EMTALA may occur, but only if the President declares an emergency or disaster under the Stafford Act or National Emergencies Act or the Secretary of the U.S. Department of Health and Human Services declares a public health emergency or invokes her waiver authority.

Guidance for Business, Employers and Schools

Additionally, amid reports this month that the availability of the much-anticipated H1N1 vaccine will be delayed, the CDC posted guidance for businesses and employers and for school administrators (K-12) to plan and respond to the 2009-2010 influenza season. These guidelines are designed to encourage employers and businesses to develop policies and procedures to decrease the spread of the disease while maintaining business continuity during the flu season.

Baker Hostetler is working with employers to advise them with respect to their obligations under the Americans with Disabilities Act and the Family and Medical Leave Act relating to issues, such as the creation of flexible worksites, including telecommuting, testing of employees, school closure and its impact on the employee base, the identification of key employees and the use of personal protective equipment under the OSHA laws.