By Donald C. Dowling
White & Case LLP
In April 2009 the World Health Organization called the Spring 2009 swine flu outbreak a “public health emergency of international concern” and the New York Times said the world was at “the leading edge of a global pandemic.” With no vaccine yet in existence and with public health officials recommending extreme local and international precautions, the emergency was truly global.
Any communicable-disease outbreak raises real concerns in the employment context. Employers have a keen interest in keeping staff healthy and in containing the spread of a disease, not only for the obvious reason of employee welfare but also to keep business operations running and to minimize liability exposure. A communicable-disease outbreak of “international concern” could also raise special issues for multinational employers: How can a multinational corporation implement pandemic precautions and policies across worldwide operations? What legal issues does a cross-border pandemic response policy raise?
The elements in an effective pandemic protocol vary widely by employer - with the medical issues predominating over the legal. Pandemic plans tend to address topics as disparate as: workplace safety precautions; insurance coverage; paid time off, mandatory telecommuting and vacation; disaster communications; employee travel restrictions; stranded employee travelers unable to return home; mandatory medical check-up/vaccination/medication; mandatory reporting of exposure (employee reporting to employer and employer reporting to public health authorities); employee quarantine/isolation; terminations for violating protocols; and facility shut-downs.
Medical professionals may be better experts than lawyers to advice on content of a global swine flu protocol, but any global workplace pandemic plan implicates a number of international employment law issues that should not be overlooked. A best practice is to draft a global pandemic response plan template that accounts for legal compliance internationally, and then to adapt that template to the local laws of each jurisdiction. In doing that, an employer needs to consider these ten legal issues that are most likely to be implicated:
- Health and safety representatives: In much of Latin America and Europe, employers must appoint health and safety representatives, and consult with them on workplace health/safety policies. Since current versions of an employer’s local health/safety plans will almost surely be silent on recent communicable-diseases such as swine flu, rolling out new pandemic procedures requires amending existing local plans. The amendment procedure needs to follow local law and involve local health/safety representatives. Neglecting this step by unilaterally imposing a pandemic policy could amount to an unfair labor practice in countries where the employer sponsors health/safety representatives.
- Labor/employment law: Health/safety representation aside, many countries confer on labor representatives (like trade unions and work councils) a right to consult on issues affecting the workplace. Labor representatives may not have an absolute right to veto a new pandemic plan, but they will likely have power to void one that was unilaterally-implemented. In some countries local government labor agencies will also have a voice. For example in Japan and Korea, employers are required to post written work rules. As a result, adding any pandemic contingency procedures to the terms/conditions of employment requires amending current work rules and posting them for employees.
- Language: A pandemic response plan rolled out internationally must be understandable. Some jurisdictions require that communications or work rules be in the local language. Even where laws are not so strict, to be understood and enforced, a pandemic plan needs to be in a comprehensible language for employees.
- Medical attention: In Brazil, Italy and elsewhere, many employers have on-staff doctors. It is important to enlist company doctors as crucial players on the front line of any communicable-disease outbreak. Outside of countries that permit or require company doctors, employers will have a more difficult time requiring employees to get a medical exam or take a vaccine or medications. In countries from Europe to Canada to Asia, the analysis will depend on whether an employer’s mandate for employees to see a doctor is reasonable. Other legal issues as to employer-provided medical care include: regulation of prescriptions; drug importation; employer distribution of drugs/vaccines; employer (or nurse) practicing medicine; doctor/patient privilege.
- Medical costs/procedures/coverage: In many countries government medical systems (sometimes partly payroll-funded) pick up sick employees’ medical costs, so medical bills of sick staff may not add to an employer’s costs. A problem, though, can arise as to immigrants, expatriates and business travelers away from home-country medical care systems. It’s important to make sure mobile employees have coverage and know where to go for medical help.
- Isolation: Some employer pandemic plans try to reserve an employer’s right to isolate or “quarantine” possibly infected employees. Some pandemic plans seek to restrict employee travel (business and personal) into problem areas, or return travel after exposure in a problem area. However, isolation orders and travel bans are usually scrutinized in light of employee rights. Spell out isolation procedures and travel bans clearly in the pandemic plan. Anchor them in reasonable medical advice.
- Personal injury liability: Multinationals implement global pandemic plans in part to reduce exposure to personal injury lawsuits from employees exposed to viruses on-premises. In most countries, worker safety laws and other rules impose an affirmative duty of care on employers. To meet this duty, pandemic plans need to address safety measures (distribute masks? distribute medication? require available vaccines?). In many countries employers can invoke a doctrine like the workers’ compensation bar to defend against employee personal injury claims. But some jurisdictions (like England) have no such defense. Other places, such as in Latin America, allow employees to surmount the workers’ compensation bar by proving mere employer negligence. Plan accordingly.
- Discipline: When a pandemic hits, employees may refuse to report for work or refuse business travel assignments or insist on working from home. Local law may support a no-show employee whose refusal to work is reasonable - but employers can usually discipline employees for unreasonable absences. Implement clear rules prohibiting unreasonable refusal to report. Build clear procedures for communicating when the workplace is safe.
- Shut-downs: Swine flu workplace shutdowns spread across Mexico in April 2009. The main employment liability here is pay: In many countries an employer that shuts down temporarily must pay those willing to work. (Sick workers often collect sick pay, from either the employer or the state, under local sick-pay systems.) In some countries, there are local laws that permit an employer to suspend operations and pay in the event of a genuine force majeure. In other countries implementing a furlough may be possible. Any pandemic policy should address these issues in a defensible way. Data privacy: In a swine flu pandemic, employers will want workers to report whether they or their family members have the flu; where they have recently traveled; and whom they have been exposed to. However jurisdictions with robust privacy laws restrict employers from forcing workers to divulge personal data - particularly health information, which in the EU is subject to special rules for “sensitive” data. Pandemic plans should spell out situations where public health factors make personal inquiries reasonable. Invoke any employer duties to report infections to public authorities and to maintain a safe workplace. Process employee flu-status data carefully.