Swine Flu, Quirky Question # 106

Quirky Question # 106:

We’ve heard a lot about the swine flu, also known as the H1N1 virus.  So far, we have not had many, if any, problems with this flu strain in our workplace.  Nevertheless, we are looking for guidance as to how we should handle various issues that could arise if the H1N1 virus becomes much worse with the fall flu season.  Any suggestions for how this should be addressed at our company?

Dorsey’s Analysis:

You have asked for guidance regarding how to deal with the various issues associated with the H1N1 virus (a/k/a, the “swine flu”), especially if it becomes worse in the fall flu season.  Nothing particularly quirky about that question, but it is one I am hearing with considerable frequency.

First, the good news.  Thus far, in the United States, despite its recent designation as a “pandemic” by the World Health Organization (WHO), the H1N1 virus has not been nearly as severe as was anticipated.  The influenza strain has proven highly contagious but the symptoms are more mild than expected, the symptoms appear to respond to standard treatment (stay in bed, drink lots of fluids, etc.), and thus far, the mortality rate has been quite low.  Keep in mind that approximately 35,000 people die annually from other types of flu, so the absence of these types of numbers for the H1N1 influenza virus is encouraging.  Moreover, the drug companies and the U.S. Government are working on a vaccine that is expected to be available in October or November.

Your question, however, addresses what you need to consider if the virus “ becomes much worse with the fall flu season.”  This type of inquiry leads down the path of the not-so-good news.  Consider, for example, the so-called Spanish flu strain of 1918.  Estimates place the mortality figures associated with that flu virus at between 50 and 100 million, at a time when the world’s population was approximately 1 billion.  In short, between five and ten percent of the world’s population died as a result of that flu strain.  Project comparable numbers on the world’s current population and the numbers are staggering.  The world’s current population is estimated at 6.7 billion people.  If ten percent of the population died as a result of the H1N1 virus, you’re talking about a mind-boggling 670 million people.  Even assuming that with the advances in modern medicine, the mortality figure would be just one percent, rather than ten percent, you’re still at astronomical numbers – 67 million people.

That is why, despite the fact that the H1N1 virus does not appear to be as severe as expected, there are many who remain extremely concerned.  Apparently, the pattern of the 1918 virus was a fairly mild strain in the Spring and Summer, followed by a far more virulent mutated strain in the Fall, the typical flu season.  If the H1N1 virus mirrored that pattern, things can be expected to get much worse in the months ahead.  Further, there are additional reasons for concern.  The World Health Organization now estimates that more than one million people already are affected by the virus worldwide.  The Center for Disease Control (CDC) is estimating that perhaps as many as one million people already have been infected in the United States alone.

In Saturday’s (August 15) Minneapolis Star & Tribune, it was reported that Minnesota’s state epidemiologist warned that 1.5 million Minnesotans alone could get the flu in the upcoming flu season, and that about 30 percent of Americans could get the H1N1 influenza virus or other flu strains.  Exacerbating the situation, even when the vaccine becomes available, it is anticipated that each person will need three separate flu shots over a several week period.  Moreover, it remains unclear how many doses of the vaccine will be available at the beginning of the flu season.  As the Star Tribune reported, Minnesota’s epidemiologist estimates that between 15,000 and 172,000 Minnesotans will require hospitalization this fall and as many as 32,900 Minnesotans could die from influenza during the upcoming flu season.  If the actual experience is consistent with the high end of these estimates, the health care system faces a daunting challenge.  If 30 percent of Americans become ill this Fall with the H1N1 virus or other influenza strains, businesses will have to evaluate how they can continue to function without significant disruptions.

In short, the H1N1 virus could present serious problems both for individuals and for society.  As Mike Osterholm, Minnesota’s former state epidemiologist (currently with the University of Minnesota), observed, H1N1 is going to have a disruptive effect on the economy.  Just yesterday, as reported by CNN, the nation’s Health and Human Services Secretary, Kathleen Sebelius, stated that the U.S. Government is “preparing for the worst,” while “hoping for the best.”

Given the potentially dramatic disruptive effects of the swine flu, prudent employers should consider NOW how they intend to address the multiple problems associated with the H1N1 virus.  To assist in that evaluative process, consider the following resources:

These sites contain a great deal of information regarding the H1N1 virus and should help you formulate appropriate workplace policies.  In particular, the websites www.pandemicflu.gov and www.cdc.gov/business contain business pandemic influenza checklists that you may find helpful.

You also need to begin considering the types of Human Resources or Employee Relations types of questions that undoubtedly will arise this fall if the pandemic worsens.  These questions include the following:

a)         Is an employee with influenza entitled to leave under the Family Medical Leave Act?

b)         Is an employer required to pay an employee for the time they are out of work with the flu or to care for a family member with the flu?

c)         What legal responsibility do employers have to allow employees time off from work to care for sick children that have been sent home from school or day care?

d)         Is an employer required to allow an employee to stay home from work to avoid getting influenza?

e)         Can an employer require an employee not to take vacation or other PTO in countries/locations where the H1N1 virus is prevalent?

f)          Can an employer require employees to wear protective gear such as masks or gloves or take other measures to control the spread of infection?

g)         Can an employer require employees to have medical exams or present medical certification related to whether they are carriers of the influenza virus before allowing them in the workplace?

h)         Could an employer be held liable if its employees or other third parties contract influenza at the workplace? and,

i)          If the employer has unionized employees, does that affect how an employer handles issues related to a pandemic?

Everyone remains hopeful that the swine flu will not be as serious, either medically or in terms of the related practical consequences, as many predict.  But hoping the problems will not occur, while ignoring practical precautionary steps that should be taken now, would be ill advised.


Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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