A potentially serious outbreak of swine influenza A (swH1N1) has been detected in North America. The outbreak appears centered in Mexico where the World Health Organization reports at least 854 cases of influenza-like illness and more than 60 fatalities reported so far. Eighteen of the cases in Mexico have been genetically confirmed as swine influenza. In the United States, the Centers for Disease Control and Prevention (CDC) report at least 40 confirmed cases of swine influenza in California, Kansas, New York City, Ohio and Texas. Most of the reported cases in the United States have been described as mild, and no fatalities have been reported.

The World Health Organization has declared the swine influenza outbreak a “Public Health Emergency of International Concern,” defined as any event that constitutes “a public health risk to other states through the international spread of disease and [potentially] requires a coordinated international response.” (See http://whqlibdoc.who.int/publications/2008/9789241580410_eng.pdf). The European Union Health Commissioner and health officers from several other countries have issued travel warnings, advising residents not to travel to the United States or Mexico.

In the United States, Acting Secretary of the U.S. Department of Health and Human Services (HHS) Charles E. Johnson declared a Public Health Emergency pursuant to section 319 of the Public Health Service Act (42 USC § 247d). This action gives broad powers to federal public health agencies to prepare for a potential pandemic, including the pre-positioning of strategic national stockpiles of anti-viral agents and resuscitation equipment.

Organizations of all types should monitor this situation closely, review their existing pandemic influenza plans and ensure that resources are available should the plans need to be implemented. Organizations without plans should act quickly to develop plans to address legal issues likely to emerge if the outbreak continues. For example, organizations should (a) ensure they have a system for notifying non-essential employees not to report to work, (b) determine what jobs employees could perform from home, (c) plan the contingencies that need to be implemented to make it possible for employees to work from home effectively, (d) consider whether and how the organization would implement its attendance policy during a potential pandemic, and (e) for unionized organizations, consult the collective bargaining agreement and meet with union officials to discuss or, if necessary, negotiate, concerning how a pandemic would affect the existing terms and conditions of bargaining unit employees' employment.

Health care organizations should prepare for a potential increase in medical surge, whether or not the outbreak worsens. Health care leaders should closely monitor the situation, work proactively with state and local health authorities, and begin thinking now about implementing pandemic flu plans to ensure available staff, resources and care sites are available to care for an increased number of patients, or “worried well." For example, both Walgreens and CVS have begun preparing for the increase in demand for their services.

While providing quality care is the priority, hospitals must develop processes and systems to remain compliant with state and federal regulations. Should the outbreak spread, hospitals and health care organizations must be prepared to respond quickly, effectively and legally to requests for information from federal and state public health authorities, media, employees, patients and families. Compliance with HIPAA and state privacy laws will be necessary even during the public health disaster. Should health care organizations need to establish alternate sites they will need to do so in a manner consistent with state and federal regulations, including state licensing regulations and federal EMTALA regulations. Health care organizations may also have to deal with an influx of volunteers. While well-intentioned and often helpful, volunteers bring complex liability and credentialing challenges. Maintaining compliance with applicable state and federal laws is critical to ensuring uninterrupted funding from federal and private health care payers, during and after the emergency.

From assisting health care organizations navigate complex regulatory and reimbursement issues during a public health emergency to advising employers on how to handle unusual workplace issues, the Baker & Daniels LLP health and life sciences team and its labor and employment team have the experience necessary to assist organizations of all types to prepare and respond to a public health emergency. Our attorneys and consultants will continue to monitor this situation closely.