This month's issue of Inside Counsel magazine reports that, with respect to an avian flu outbreak, a corporate legal department's primary concerns involve contracts, liability and labor law issues.
For instance, would a U.S. company be allowed to send a sick employee home? According to Dale L. Deitchler, a labor and employment lawyer with Littler Mendelson:
"If there's a pandemic, and the risk of human-to-human transmission is high and prophylactic measures are ineffectual, employers will have more leeway to put safety ahead of workplace discrimination law requirements, such as reasonable accommodation or the ADA," Deitchler says.
Because an infected worker's presence at a facility would likely pose an undue hardship on the company, courts will recognize the only reasonable course is to send the employee home, Deitchler argues. In fact employers may be obligated to do so under occupational safety and health laws.
Deitchler says legal departments should review leave policies and add provisions that deal specifically with infectious diseases. The legal department also should review workers' compensation, health insurance and union agreements.
"There may be a clause restricting the use of alternative or temporary labor which could restrict your planning," Deitchler says. "While many agreements address emergencies or acts of God, companies should consider proposing a disaster-management clause."
Companies should take a similar approach to long-term product or service contracts, according to Brian L. Levine, a litigator with Detroit-based Miller, Canfield, Paddock and Stone.
"An organization that is forced to break long-term contracts because of a flu pandemic is going to have to convince the court that the outbreak was unforeseeable," he says. "Since we're being bombarded with doomsday predictions every day, that would be a challenge." Levine recommends companies review long-term contracts and insert a clause addressing potential disruptions due to an avian flu outbreak. "It's very easy to put it in the contract," he says. "If it never happens, then it never happens. But at least you have the provision in there."