Challenge:

As proactive multinationals prepare for a global avian flu pandemic, logistics plans implicate employment law issues worldwide.

On January 18, the New York Times reported that avian flu (“H5N1”) virus has so far infected 267 humans, killing 161: The virus may “spark a pandemic, researchers say.” Public health officials, and many multinationals’ crisis-preparation experts, are now getting ready for a possible pandemic. A US government agency said that “planning for pandemic influenza is critical” and “having a contingency plan is essential.”

These global flu pandemic contingency plans focus on logistics—how to respond if a pandemic hits. But global flu plans inevitably raise employment law issues around the world. A best practice is to devise a plan template that accounts for legal compliance internationally, and then adapt that template in each local jurisdiction, accounting for local law. Consider these top ten legal issues:

1. Health and safety representatives: In much of Latin America and Europe, employers have to appoint health and safety representatives or employee committees, and confer with them on written health and safety plans that have legal effect. Because health/safety plans now in place tend to be silent on avian flu, rolling out new pandemic procedures requires amending local plans. The amendment procedure needs to follow local law, and involve local health/safety representatives.

2. Labor law: Health/safety representatives and committees aside, many countries give workers a right to “consult” or bargain collectively through worker representatives, trade union committees or “works councils.” Employee representatives may not have any absolute right to veto an avian flu plan, but they likely enjoy a right to comment on a draft (a concept like “mandatory subject of bargaining” in the US). There is a similar issue in Japan and elsewhere, where employers need to post written work rules. Implementing flu contingency procedures that add new terms/ conditions of employment requires amending current work rules. (For that matter, an avian flu plan will also need to be consistent with rights in employees’ individual employment agreements.)

3. Language/communications: An avian flu plan rolled out abroad needs to be understandable. Some countries require that communications to local employees be translated into the local language: Last year a US company paid a $689,920 fine for giving French employees papers in English. Even where laws are not so strict, if a flu plan is to be understood and enforced, it needs to be in a comprehensible language.

4. Health care coverage: In many countries, state health care systems (sometimes partly payroll-funded) pick up health care costs of sick employees. Therefore, routine medical bills of local flu-infected staff may not be an employer cost. A problem, though, can arise as to expatriates or business travelers away from their home-countries’ health care systems. Be sure mobile employees have coverage.

5. Personal injury liability: Multinationals implement global avian flu plans in large part to reduce exposure to personal injury lawsuits from employees (and customers and others) exposed to the flu virus on-premises. In most countries, worker safety laws and other rules impose an affirmative duty of care on employers. To meet this duty, flu plans should address safeguards (distribute masks? vaccines? Tamiflu? what other precautions?). Fortunately, in most jurisdictions employers can invoke a doctrine like the US workers’ compensation bar to defend against employees’ personal injury claims. But some countries (even England) have no such defense. Other places, especially in Latin America, let an employee surmount the workers’ compensation bar by proving mere negligence. Plan accordingly.

6. Discipline: When a pandemic hits, employees may refuse to report for work, or insist on working from home. Local law may well support a no-show employee whose refusal to work is reasonable—but employers usually can discipline for unreasonable absences. Build procedures for communicating when the workplace is safe, so that a refusal to work becomes unreasonable.

7. Shut downs: In a severe pandemic, employers will likely shut down operations temporarily, and thorough pandemic plans usually address shut-downs. The employment liability issue is pay: In many countries, an employer must pay those ready and willing to work. (Sick workers collect sick pay from either the employer or the state, under the local sick-pay system.) Law in some countries, though, will let an employer suspend operations, and pay, because of a genuine force majeure.

8. Data privacy: In a real pandemic, employers will want workers to report whether they get sick, where they have recently traveled, and whom they have been exposed to. But jurisdictions like Europe with robust privacy laws hinder employers from forcing workers to divulge personal data. Pandemic plans should be flexible here. Spell out situations where public health factors make personal inquiries reasonable. Invoke the employer duty to report infections to public authorities and the employer duty to maintain a safe workplace.

9. Medical attention: In Brazil and Italy, employers have to have on-staff doctors; company doctors will become crucial players on the front line of any avian flu pandemic. But outside of company-doctor countries, employers will have a more difficult time requiring possibly-infected employees to get a medical exam or take a vaccine, subject to discipline for refusing. In countries from Europe to Canada to Asia, the analysis here will depend on whether the employer mandate to see a doctor is reasonable. Other legal issues as to doctors, depending on what the employer wants to do, include: regulation of prescriptions; drug importation; and doctor/patient privilege.

10. Isolating employees: Some avian flu plans address an employer’s right to isolate or “quarantine” possibly-infected employees. Some plans seek to restrict employee travel to problem areas. But isolation orders and travel bans will get scrutinized in light of employee rights. Spell out isolation procedures and travel bans clearly in the pandemic plan. 

Pointer:

Draft a global flu pandemic plan template that accounts for legal issues generally. Then adapt that plan in each local jurisdiction, modified to account for local law.