Preparing for a Swine Flu Pandemic: Issues for Employers

January 1, 0001


In a sign that A/H1N1 swine flu may be spreading, the World Health Organization (“WHO”) on Wednesday raised the pandemic threat level to 5, and reports are that the swine flu has spread to nine countries on four different continents in recent weeks, with at least 148 confirmed and many more suspected human cases. WHO reports that “[t]he situation continues to evolve rapidly.” For our clients, a potential pandemic raises significant employee safety and health issues, as well as the specter of the business continuity challenges that accompany high employee absenteeism and incapacitation rates.

The classic case we are seeing, at least for now, involves an employee who experiences or is perceived to experience flu-like symptoms in the workplace. If employees are infected, inaction may lead to a spreading of the virus and a perception that the employer has ignored the risk. If the virus is not present, incorrect action and panic can lead to accusations that the employer has violated laws, such as federal and state disability laws. Employees could also start contacting government agencies on their own if there is a perceived lack of attention.

We have been guiding clients through these issues as the frequency of “suspicious” cases increases. With still much uncertainty regarding the course this virus will take, each employer can and should take steps now to reduce the risk of exposure to pandemic influenza in their workplace, and also to reduce the risk of exposure to potential liability that can arise if appropriate steps are not taken. Handling these issues involves a very purposeful and organized approach, through ideally a “Pandemic Planning Team” in the workplace, centralized crisis management (for the education for employees, communication with employees, and decision making), and implementing heightened infection control protocols in the work place.

Preparing for a swine flu pandemic presents a number of logistical and business continuity -- as well as legal -- issues for employers. Given the impact of other recent disasters such as the Avian flu and hurricanes like Katrina and Ike, it is clear that employers have no choice but to safeguard their employees and businesses through careful preparation, while weighing the legal issues that arise.

We hope that the below memorandum is helpful for our clients. We also set out below some websites with which you may want to become more familiar. If you have any questions, you can direct them to our labor and employment law partners Scott Dunham in our Los Angeles office (213 430-6060 - or Jeff Kohn in our New York office (212 326-2067 -, or to any O’Melveny partner with whom you regularly speak.

Please click here to view the full O'Melveny & Myers LLP memorandum.

For additional information, please check the following resources: