By John Austin

A new flu, the H1N1 virus, also known as swine flu, has spread around the globe since it arose this winter from a Mexican village. A new surge in infections is expected this fall, raising concern among employers and workers everywhere about health at home, at work, at school, and in the community. The reality of this came home to me this summer when my granddaughter went to a vocal music camp on a Sunday and, by Wednesday, 27 children had been sent home with one form of flu or another, including swine flu. By Friday, the closing concert scheduled for Saturday was cancelled and the remaining campers were sent home a day early. As I was listening to the news that Friday night, a doctor was on the air talking about similar incidents all over the country.

The seriousness of this threat should not be underestimated. In a recently issued report by the President’s Council of Advisors on Science and Technology, [
AssetId=2544] the following sobering scenario about the autumn 2009 flu season was put forward:
•    Infection of 30%-50% of the U.S. population this fall and winter, with symptoms in approximately 20%-40% of the population (60 to 120 million), more than half of whom would seek medical attention;
•    As many as 1.8 million U.S. hospital admissions, with up to 300,000 requiring intensive care (using 50%-100% of all ICU beds in affected regions);
•    H1N1 causing between 30,000 and 90,000 deaths in the U.S.;
•    Especially high risks for individuals with certain pre-existing conditions, including pregnant women and those with neurological disorders, respirator impairment, diabetes and severe obesity; and
•    High risks for certain populations, such as Native Americans.

To assist businesses and health professionals prepare for this serious, perhaps pandemic, flu outbreak, the U.S. Department of Health and Human Services’ (HHS) Centers for Disease Control and Prevention (CDC) and the U.S. Department of Homeland Security (DHS), have developed updated guidance for employers to use as they plan to respond to 2009-2010 H1N1 influenza. Employers play a major role in protecting employees’ health and safety, as well as in limiting the negative impact of influenza outbreaks on the individual, the company, the community, and the nation’s economy. Employers should review and revise their pandemic plans in light of the current 2009 H1N1 influenza outbreak, taking into account the extent and severity of disease in their community. That guidance can be found at Information specific to businesses can be accessed at:, and you can access a communications tool kit for employers through the following link:
/plan/workplaceplanning/toolkit.html. Additionally, you can access an archived Web cast, “Know What to Do About the Flu,” through the following link: Portions of this article have been taken from these sites.

Employers must consider a variety of objectives as they determine how to decrease the spread of influenza and lower the impact of influenza in the workplace. They should consider and communicate their objectives, which may include one or more of the following:
•    Reducing transmission among staff;
•    Encouraging employees to obtain flu vaccinations;
•    Protecting people who are at increased risk of influenza related complications from getting infected with influenza;
•    Maintaining business operations, including planning for increased numbers of employee absences due to illness among employees and their family members and ways for essential business functions to continue; and
•    Minimizing adverse effects on other entities in their supply chains.

The most basic, but probably the most important, guidelines and precautions that can and should be followed to prevent the spread of flu are:
•    During an influenza pandemic, all sick people should stay home and away from the workplace;
•    Employees who become sick at work should be sent home immediately;
•    Hands should be washed frequently;
•    Coughs and sneezes should always be covered; and
•    Commonly touched surfaces should be cleaned on a regular basis.

Employers should be ready to implement additional measures if severity increases.  There are methods you could use (which you may implement early, as additional protection) for increasing the physical distance between people to reduce the spread of disease, such as:
•    Canceling large employee gatherings;
•    Canceling large business-related meetings;
•    Canceling non-essential travel;
•    Actively screen employees who report to work;
•    Spacing workers farther apart in the workplace;
•    Identifying and implementing work-from-home strategies for workers who are able to conduct their business remotely; and
•    Be prepared for school closings and the accompanying drop in employee attendance for child care necessities.

If your plan includes the use of face masks or respirators to protect the spread of flu, you should be aware that there is an impending shortage of these devices and you should place your orders immediately. According to an article in, at a meeting of the Institute of Medicine personal protective equipment (PPE) committee workshop, attendees raised the issue of the potential shortage of PPE as the fall flu season approaches and recommended that the Occupational Safety and Health Administration and CDC take that into account when advising on the appropriate level of worker protection.

Employers who have not yet developed plans and those in communities that have not yet felt effects from the 2009 H1N1 influenza should still plan for an influenza outbreak this fall and winter. By doing so, you can be ready to protect your workforce while ensuring continuity of operations.

Austin is a partner with Patton Boggs LLP and can be reached at 202-457-6167 or by E-mail at