May 2009 E-Alert
Labor and Employment Issues Raised by
Pandemic Flu Preparations and Responses

The recent detection and spread of the H1N1 virus, or “swine flu”, has prompted many companies to review or develop their response plans to a pandemic flu. Estimates by the federal government are that a pandemic flu on the scale of the 1918 Spanish flu would cause absenteeism rates of 40%. As a result the Federal government is encouraging private and public employers to develop contingency plans to help continue operations during such an outbreak.

Such high absentee rates could result, for example, from employees suffering from the illness, needing to care for sick family members or to care for children in the case of school closings, such as those currently taking place in multiple school districts. At this stage it is too early to declare the H1N1 virus a pandemic on the scale of the 1918 Spanish flu, but the federal government has issued various tools that companies can use in their preparations if the outbreak does escalate in scale.

The main source for all information and updates on the pandemic flu, including the H1N1 virus, can be found at www.pandemicflu.gov. This web page also contains a Planning Checklist for private businesses, healthcare institutions and state and local governments as well as Guidance on Preparing Workplaces for an Influenza Pandemic.

As a reminder, employers with union represented employees have a duty to bargain with the union representative over terms and conditions of employment and any changes made to those terms and conditions, such as alternative work schedules, work from home schedules, attendance policies, etc. Therefore, changes to terms and conditions of employment in response to the H1N1 virus raise collective bargaining issues. Additionally, it is anticipated increased requests for leave under the FMLA and various OSHA issues will result.

The Lowenbaum Partnership is advising its clients to take a proactive approach to addressing this potential pandemic and stands ready to advise and assist its clients in dealing with any issues that may arise in weeks and months ahead.

This E-Alert is intended as in informal summary of certain recent legislation, cases, rulings and other developments. This E-Alert does not constitute legal advice or a legal opinion and is not an adequate substitute for advice of counsel. This E-Alert is not intended to nor does it create an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements. If this E-Alert is deemed to be an advertisement please disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of us. The exact nature of your legal situation will depend on many facts not known to us at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri.

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