There's no shortage of information for employers about pandemic influenza. But what has been almost completely overlooked is an analysis of what the law requires employers to do about influenza hazards in the workplace. Now that flu season is in full swing, this seems like an appropriate time to examine this issue. This series will explain how an employer can be liable if workers contract the disease at work. Then, we'll discuss how to manage liability risks.
January 29, 2007
A Note on the Scope of the Analysis
While avian influenza is the concern of the moment, the legal obligations and liability risks this series describes apply to other forms of infectious diseases that can be contracted in a workplace such as West Nile Virus or SARS.
What the Law Requires
Let's start by putting the bottom line on top: The law does require employers to safeguard their workers against the risk of infectious diseases including avian influenza. This legal obligation comes from two places:
1. The OSHA Statute
The first place to find a duty to guard against avian influenza is within the Occupational Safety and Health Act of 1974 (the "OSHA statute"). Where does the OSHA statute say anything about avian influenza? Answer: It doesn't. The obligation is implied under the so called "general duty" clause—that is, Section 5(a)(1) of the OSHA statute. This clause requires employers to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm."
OSHA has not publicly stated that it interprets the general duty clause as requiring employers to safeguard workers against avian influenza. However, lawyers suggest that OSHA is likely to take such a position. "Clearly, given all the media and government attention it has received, an employer would be very hard pressed to argue that the risk of contracting avian influenza is not a recognized hazard covered by the general duty clause," according to a Washington, DC, lawyer.
This is especially true in industries where workers are at relatively high risk of exposure to avian influenza including:
Meanwhile, OSHA is acting like it expects employers to treat avian influenza like a serious workplace hazard. On November 14, 2006, OSHA published a set of updated guidelines to help employers protect workers against infection risks. Employers should thus anticipate that in the event of a pandemic they'll be under an OSHA obligation to protect members of their workforce.
- Farm workers;
- Poultry handlers;
- Laboratory workers;
- Healthcare providers who treat patients infected with avian influenza; and
- Airline flight crews that travel to and from South Asia and other high-risk regions.
2. The Negligence Law
The duty to guard against avian influenza also stems from the law of torts. Tort is a form of common law, that is, law made by judges, rather than by legislators and regulators. The law gets made one lawsuit at a time on the basis of facts. Each case then serves as precedent establishing standards and rules for the cases to follow.
The part of tort law that most people have heard of is called negligence. Negligence law is essentially the "general duty" clause applied to everyday life. It requires all persons to use "reasonable care" to protect others affected by their acts (and omissions) against foreseeable risks. Given all the attention it's gotten, it would be hard for employers to argue that the risk of pandemic influenza wasn't foreseeable.
Within the workplace, workers' compensation bans workers from suing their employers for negligence. (In return, for giving up the right to sue, workers get guaranteed coverage of work-related injuries, even if those injuries weren't the result of their employer's negligence.) But the ban on suing for negligence is subject to certain limits:
It Doesn't Apply to Third Parties: The ban doesn't apply to third parties not employed by the employer. Result: A contractor, visitor or other third party that contracts avian influenza at your workplace (or in the course of doing business with your company) could sue you for negligently failing to warn or protect them.
It Doesn't Apply to Gross Negligence: Workers themselves can get around the workers' compensation ban on negligence lawsuits if they can show that the infection was the result not simply of the employer's negligence but of gross negligence. The case establishing this precedent involved an Ohio hospital worker who became infected with tuberculosis at work [Padney v. MetroHealth Med. Ctr., (2001) 145 Ohio App.3d 759, 764 N.E.2d 492].
Even if it weren't required by the law, employers would be well advised to prepare for pandemic influenza. Although experts disagree about the impact a pandemic would have (some predict absenteeism as high as 40 percent; others claim it would likely be about 10 to 15 percent), businesses that are prepared in advance will clearly have a major advantage. Next week, we'll discuss what measures an employer should take to protect its workforce and business.
THE CANADIAN PERSPECTIVE
By Glenn Demby
Like their U.S. counterparts, Canadian employers have a legal obligation to safeguard workers and visitors from contracting pandemic influenza and other infectious diseases in the workplace. The origins of that legal duty are the same as in the U.S.:
1. General Duty Clauses of OHS Statutes
The 10 provinces, three territories and federal jurisdiction all include an analog to the "general duty" clause in their own OHS statutes. And as in the U.S., there are strong suggestions that regulatory officials interpret the "general duty" clause as encompassing the duty to protect against infectious diseases. Examples:
- Ontario and British Columbia published emergency guidelines for employer preparedness during the SARS outbreak;
- Saskatchewan published a notice stating that employers have a duty to "prepare and implement a written infectious disease plan if workers are likely" to be exposed to SARS (under OHS Reg., Sec. 85); and
- In 1998, Alberta published a Workplace Health and Safety Bulletin stating that employers have legal obligations under the OHS laws to take measures to guard against hantavirus, including the providing of training (OHS Reg., Sec. 15) and PPE (OHS Code, Part 18), respectively.
2. Negligence Law
Canadian and U.S. negligence laws are mirror images of one another. Although there are as yet no cases to have addressed the question, it is extremely likely that under the right facts, courts in Canada would find that an employer could be liable for negligence if it failed to protect a worker or visitor against contracting an infectious disease at work.
Finally, the same restrictions on immunity against civil lawsuits based on workers? compensation described above apply in Canada.
Are Employers Prepared?
By Glenn Demby
Companies around the world are very worried about pandemic influenza. But they?re not doing much to protect their businesses against the risk. This is the finding of a recent report from Mercer, the worldwide Human Resource consulting firm.
Mercer also found that businesses in countries that endured the Asian SARS crisis of 2003 are generally more advanced in their pandemic preparedness planning efforts. By contrast, pandemic preparedness by U.S. businesses is still "in its relative infancy." Documentation to support this finding includes the fact that 25% of surveyed businesses in Asia have a pandemic preparedness budget as compared to 7% in the U.S. (and 9% in Canada).
Which industries are best prepared for pandemic? Here are the rankings of surveyed companies (from all countries) that reported establishing a pandemic budget as a percentage of their industry:
- Telecommunications (29%)
- Pharmaceutical (25%)
- Hospitality & recreation (20%)
- Manufacturing (20%)
- Fast moving consumer goods (19%)
- Transport/storage (18%)
- Healthcare (18%)
- Insurance (14%)
- Education & research (14%)
- Computer services (14%)
- Finance (13%)
- Retail (6%)
- Professional services (3%)
Perils of Pandemic Preparedness Procrastination
Companies that have been putting off pandemic preparation would be well advised to get off the beam. "Once a pandemic virus emerges, it is too late to begin planning or collaboration," warns the World Health Organization. "There will only be a 20- to 30-day window between emergence and pandemic."
Source: "Avian Flu Pandemic Preparedness Survey Report, Spring 2006," Mercer Human Resource Consulting. You can download the report at: http://www.mercerhr.com/avianflu
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