Employers without an emergency preparedness plan to deal with pandemic outbreaks including the H1N1 strain of influenza could end up having serious legal implications, say doctors and lawyers who deal with emergency preparedness.
Dr. Alan West, a partner at Gowling Lafleur Henderson LLP, points to the Abarquez v. Ontario ruling arising from the 2003 severe acute respiratory syndrome outbreak in Toronto. In that case, nurses who became infected with SARS and the estates of nurses who died from complications arising from the syndrome, attempted to sue the Ontario government for not providing proper protections.
“The main finding from our perspective . . . is the Ontario government was not the employer so it had no duty under the Occupational Health and Safety Act or at common law,” West told a group of in-house counsel during a recent Association of Corporate Counsel information session on pandemic preparation, hosted by Gowlings.
He says employers “will not enjoy the policy-based immunity that the courts have recognized to the Ontario government. There is nothing in that decision that would indicate the considerations would apply to individual employers.”
West also says fines can be severe under the OHSA, with penalties that could reach $500,000. While he uses Ontario as an example, he says most provinces have health and safety acts that mirror the OHSA.
There is also s. 217.1 of the Criminal Code — the Westray mine disaster amendment — to think about.
It states “everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
West says the use of s. 217.1 in the case of a pandemic may seem far-fetched, but still “no one wants to be the test case.”
Having a proper plan in place to deal with the possibility of a pandemic — both contagious and deadly — would be a possible defence in court, says West.
Even if the plan isn’t perfect, it would still be better than nothing, especially at the penalty stage, he says.
Medical supply company Medtronic, Inc. began working on a corporate pandemic policy following the SARS outbreak. Geneviève Lavertu, Medtronic’s director of legal services and business development, says about 75 per cent of Medtronic’s employees were entering Toronto-area hospitals — the epicentre for SARS — during the outbreak.
Thus, the company began drafting a plan that takes employee safety into account first, even before the operation of the business. It had concluded the type of medical supplies it distributes to hospitals would not be emergency items in the case of a pandemic.
Lavertu did say different considerations would be needed if it was supplying emergency items.
She says many of the legal considerations West outlined came into play when Medtronic decided to create and adopt their plan.
“When you are a medical supply company and you’re going into hospitals and you don’t anticipate that you’ll be going into places that become the hub for pandemic and plan for it, I think that would be egregious,” she says. “You might not get out of that one.”
As a result, the Medtronic plan takes into account several factors. They include communication to staff, consideration for extended leave, screening employees, and the creation of influenza managers — much like floor captains in fire drills responsible for the overall plan delivery in a specific unit.
Dr. Allan Holmes, president of Global Consulting, advises businesses and often in-house lawyers on pandemic preparedness. He says H1N1 is the main strain of influenza currently circulating, so if an employee has flu-like symptoms he or she most likely has H1N1.
This should help guide employers in considering whether or not an employee who is ill should be at work. He suggests companies adopt expanded sick policies and create self-screening guidelines.
“There are a lot of mixed messages that say stay home if you are sick, but they don’t define it very well,” says Holmes.
A key is to understand when a person is contagious and take that into account when developing a response plan. He also says traditionally pandemics have three stages and that we can eventually expect a third stage of H1N1.
“People need to understand that you are contagious while you have a fever, while you have aches and pains,” he says. “Once the fever and aches and pains go away you are safe to go back to work — the likelihood of you being contagious is very low.”
While H1N1 is more contagious than other forms of influenza, Holmes notes the mortality rate is relatively low.
“The pandemic that we are in is killing fewer people than the seasonal flu does,” he says.