Editor’s Note – Mark A. Lies II and Jennifer L. de Lyon are attorneys in the Environmental, Safety, and Toxic Tort Group in the Chicago, IL, office of Seyfarth Shaw LLP. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
By now, most people are familiar with the avian influenza (AI), or bird flu, virus that has been reported throughout Asia and most recently in Europe. Although the United States has yet to experience a human outbreak of the virus, it is only a matter of time before the disease surfaces. Given high-density areas such as mass transportation systems, schools, hospitals, and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.
What is AI?
AI type A, also identified as H5N1, is an infection that usually affects wild birds but can cause serious disease among poultry, such as chickens. These type A viruses that primarily affect birds are genetically indistinguishable from the influenza viruses that are contracted by humans. There are several different subtypes of type A influenza viruses, including H7 and H5. These vary in virulence from low pathogenic to highly pathogenic, depending on the genetic features of the virus and the severity of the illness they cause in poultry. Of the few AI viruses that have crossed the species barrier to infect humans, H5N1 has contributed to the largest number of detected cases and severe disease and death in humans.
The ability for AI to emerge into a human pandemic will likely be caused by two mechanisms: reassortment and/or adaptive mutation. A reassortment occurs when a person who is already infected with human influenza comes into contact with H5N1. The human and avian virus genes then coinfect the same cell and exchange genes, essentially creating a new and more tenacious infection. In essence, the human serves as the mixing vessel for the virus to develop into a highly transmittable and deadly disease.
An additional mechanism of human transmission is adaptive mutation, which occurs when a healthy person is infected with H5N1. This mechanism involves stepwise changes, which happen as the virus mutates during infection, gradually allowing the virus to improve its transmissibility among humans. As the virus spreads throughout human populations, it is able to mutate and develop into a more aggressive form. The increasing numbers of reported deaths due to AI demonstrate that the virus may already be evolving through reassortment and/or mutation.
What are the Symptoms and Who is at Risk?
Once a human contracts the virus, the symptoms range from typical human-like influenza symptoms such as fever, extreme fatigue, coughing, sore throat, and muscle and joint aches to eye infections, pneumonia, severe respiratory diseases, and other potentially life-threatening complications. Symptoms usually begin within two to three days of exposure and depend upon the specific subtype and strain causing the infection. Only a laboratory test can confirm the virus in humans.
Those at risk of contracting the virus are mainly individuals who work with wild animals or poultry, health care professionals, frequent travelers, and airline/transportation personnel. It should be noted that the virus does not seem to discriminate in the sense that healthy, sick, young, and old people all have a significant chance of infection.
How is AI Transmitted?
Direct contact with infected poultry, or surfaces and objects contaminated by their feces, is considered the main route of human infection. To date, most people that have contracted the virus live in rural/periurban areas where many households keep small poultry flocks, which often roam freely inside homes. Regardless, as infected birds shed large quantities of the virus in their feces, opportunities for exposure to infected droppings or to environments contaminated by the virus are abundant under these conditions.
Once a human contracts the virus, there is a potential for it to spread from person to person (depending upon whether the virus reasserts or mutates itself into a form transmittable among humans) when a person talks, coughs, or sneezes. It can also spread through hand or face contact or through contact with something that an infected person has already touched. Alarmingly, research has indicated that the virus can remain viable for up to 30 days in certain circumstances of contamination.
What are the Legal Ramifications?
There are several employment and other laws that may be directly involved with this disease and must be considered by employers.
Occupational Safety and Health Act
Under the Occupational Safety and Health Act, the employer has a legal obligation to provide a safe and healthful workplace. One of the enforcement mechanisms is the ability to issue citations with monetary penalties to employers. According to Section 5 of the act, commonly referred to as the general duty clause, employers are required to protect its employees against “recognized hazards” to safety or health that may cause serious injury or death.
Given that the Occupational Safety and Health Administration (OSHA) does not have a specific regulation that deals with AI, OSHA will utilize the general duty clause. In order to determine the scope of the employer’s obligation under the general duty clause, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources, such as recommendations issued by the Centers for Disease Control (CDC), the National Institute for Occupational Safety and Health, or other similar resources. If OSHA can establish that employees at a worksite are reasonably likely to be exposed to AI (e.g., through handling poultry, working in the transportation industry, requiring travel to affected countries, serving as healthcare providers, etc.), OSHA will likely require the employer to develop a plan with procedures to protect its employees.
Under the act, the employer may also have additional legal obligations to the employees of another employer who may come to the workplace and may potentially be exposed to the hazard (in this case, to AI carriers). OSHA may utilize its authority under the “multi-employer workplace doctrine” to issue citations to the host employer when personnel of another employer are exposed. In these instances, citations can be issued by the agency to the host employer if another employer’s staff members are exposed or if the host employer created the hazard or exposed the other employees to the hazard. The host employer or the controlling employer at the site will ultimately be held responsible to correct the hazard.
OSHA will expect the responsible employer to develop a program based upon a “hazard assessment” of potential exposure at the worksite (provided in more detail below), such as conduct employee awareness training regarding the hazard; develop procedures, including the use of personal protective equipment (e.g., masks) if necessary to prevent infection and transmission; develop a means of reporting infection and providing medical surveillance for employees who contract the disease; maintain appropriate documentation of the foregoing; preserve medical records; and maintain an OSHA 300 Log for illnesses that are occupationally related.
Workers’ Compensation – Disability Benefits
In the event that an employee contracts AI as a result of occupational exposure (in other words, the illness “arises out of and in the course of employment” that the employee must prove with competent medical evidence), the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment, and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should evaluate whether it has adequate workers’ compensation insurance coverage and coverage limits that include occupational diseases.
If an employee contracts the disease and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that AI is going to involve significant medical issues, such as determining whether the employee is infectious, what type of treatment is necessary, whether the employee presents a health risk to others, and when the employee can safely return to work. Therefore, it is essential that the employer identify a competent medical professional with expertise in infection control who can advise it on all medically related issues, including workers’ compensation.
Family and Medical Leave Act
Under the Family and Medical Leave Act (FMLA), employers who have more than 50 employees are required to provide up to 12 weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee is also eligible under the FMLA in the event of a serious health condition affecting its spouse, child, or parent(s).
If an employee contracts AI, this disease will most likely be considered a “serious health condition” under the FMLA, warranting the unpaid leave. Similarly, if an employee’s parent, spouse, or a child contracts the disease, this will likely be a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for such an immediate family member.
It is certain that issues may arise if the employee contracts the disease but is able to continue working while potentially exposing other employees to infection. Since the CDC appears to recommend removal of such individuals from the workplace to prevent transmission of the disease, the employer may consider placing the employee on an FMLA or other form of leave despite the employee’s desire to continue working.
If the employee exhausts the entire 12 weeks of FMLA leave and is unable to return to work at that time, the employer may wish to consider additional unpaid leave for the employee, although such leave would be outside of the FMLA required reinstatement rights.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) provides certain protections to employees who may have physical, mental, or emotional “disabilities” but who are otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment that substantially limits one or more of the major life activities of an individual (e.g., breathing, working, speaking) that is chronic in nature. Thus, AI, which is expected to involve temporary infection, and hopefully recovery, would not appear to qualify as a “disability.”
The ADA may become a factor, however, if an employee develops a disability as a result of the disease and cannot return to their former work duties because of such impairment. The employer must then be prepared to engage in an “interactive process” with the employee that involves a case-by-case dialogue regarding the employee’s ability to return to work, any work restrictions, what accommodations may be available that do not cause undue hardship to the employer, or whether the employee’s disability presents a direct threat to the health or safety of the employee or other employees. Again, it is recommended that employers engage competent medical advice regarding any accommodations that may be warranted as a result of the long-term effects of this disease.
Premises Liability
Under general common law principles in most jurisdictions, a landowner (sometimes the employer) who allows third parties such as clients, vendors, or contract employees to enter upon its premises for business or related purposes owes these individuals a duty of “reasonable care” to protect them against hazards at the premises that are not “open and obvious.” In the case of AI, if the landowner is or should be aware that there are infectious persons, whether its own employees or tenants, at the premises who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may become contaminated with AI, the landowner may have an obligation to prevent such contamination through enhanced measures.
In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.
Informational Web sites on AI
Centers for Disease Control – www.cdc.gov
CDC Information for Specific types of Employees – www.cdc.gov/flu/avian/groups.htm
OSHA – www.osha.gov
U.S. Department of Health and Human Services – www.pandemicflu.gov and www.hhs.gov/pandemicflu/plan
The World Health Organization – www.who.int
CDC Emergency Response Hotline for health employers – (770) 488-7100
Labor and the Law - June 2006 Render