Absenteeism can make otherwise sane managers apoplectic. Ask yourself how a sane manager would function if 40 percent of the workforce were absent for six to eight weeks. This is precisely what could happen in an influenza pandemic.

An influenza pandemic occurs upon global outbreak of influenza caused by a new subtype of virus transmitted between humans with no vaccine or treatment currently available. It is not simply pervasive seasonal flu but rather a variation of the flu not immediately preventable or treatable.

The last U.S. influenza pandemic was in 1918 and resulted in more than a half-million deaths in the United States alone. No one knows whether or when another influenza pandemic will occur. We know that it is a possibility. And we also know from Hurricane Katrina what happens if we don't prepare adequately for a potential crisis.

Another pandemic could spread quickly and present enormous health risks. It also could result in significant legal risks to employers. The time to prepare is now. Plans should include fine-tuning leave policies within the context of an employer's business continuity plan.

Counterintuitive Plans

Ordinarily when there are too many absences, an employer will try to encourage those who can work to do everything possible to come to work. But in a pandemic, with staggering absenteeism rates, employers will need to do the opposite.

Even though absenteeism would be the primary impediment to remaining operational during a pandemic, a critical part of an employer's business continuity plan should be, ironically, to increase absenteeism.

Two primary interrelated components to a pandemic business continuity plan directly relate to an influenza pandemic: infection control and operating with reduced personnel.

This article focuses on the second primary component: operating—or trying to operate—with reduced personnel. While the focus is on operational issues related to an influenza pandemic, some issues apply to other crises.

That said, it is dangerous for an employer to assume that its pre-existing business continuity plan will necessarily be adequate to address an influenza pandemic. It is different from many other crises such as a flood, fire or even a terrorist attack in at least two critical respects.

First, it may last for weeks or even months, coming in waves and making shutting down for a short period an unlikely survival strategy. Second, the geographic scope may be so vast that mutual-assistance programs from local businesses or the employer's other offices or facilities in remote locations will not be as feasible.

Four Continuity Plan Phases

In preparing for an influenza pandemic, employers generally create four phases of a pandemic business continuity plan:

• Planning stage.
• Preparedness stage.
• Response stage.
• Recovery stage.

Currently, in the United States, we are in an early or interpandemic period and most businesses are still in the early planning stage. However, we need to move quickly into the preparedness and response phases because an influenza pandemic could happen at any time and travel quickly.

Even with precautions in place to prevent the three types of transmission—contact, droplet and aerosol—it is impossible to protect the workforce completely from an employee with influenza. One infected employee could potentially infect the entire workplace, literally bringing the employer's operations to a halt and needlessly placing everyone's health at risk.

Accordingly, if there is a pandemic, employees need to be told affirmatively that they are prohibited from coming to work if they have the flu or are experiencing flu-like symptoms. In a pandemic, the message needs to be: If you are not sure whether you should work, you shouldn't.

Going Beyond FMLA Leave

To encourage employees who should stay at home to do so, employers may need to temporarily liberalize their paid-time-off policies and temporarily suspend their attendance control policies.

For example, employers might want to provide employees with additional leave beyond what they have under current policies. Some employers provide in their plans that, in the event of a pandemic, they will extend Family and Medical Leave Act (FMLA) time off to those who do not qualitY for it and grant additional FMLA leave—beyond the time mandated by the FMLA—to those covered by the law.

However, while the purposes behind the FMLA are laudable, the regulations implementing it are incredibly rigid and restrictive. Employers should be as agile as possible during an influenza pandemic, and locking into FMLA-type restrictions beyond what the law already requires could be inconsistent with maximizing agility.

It is recommended that employers instead provide in their plans that in the event of a pandemic, they will extend additional leave to employees independent of the FMLA. That way, employers can provide additional time off without all of the FMLA's restrictions and requirements.

Employers may want to provide in their plans that in the event of a pandemic, they will relax notice requirements for vacation and other paid-time-off benefits. For example, employers may want to allow employees to take vacation for any of the reasons that an employee may be unable to work, as described below—such as when schools are closed—without providing advance notice ordinarily required.

Employers also may need to relax and suspend attendance control policies in the event of a pandemic.

Screening

Even if an employer makes it easier and safer for employees to remain at home, some employees who should not be at work will want to work for financial or other reasons. Accordingly, employers may want to consider screening all employees and other visitors before they enter the workplace during a pandemic.

But how should they be screened? Should an employer consider, for example, the extraordinary step of taking the temperature of all employees before they enter the workplace? A temperature test will not tell you whether an employee has influenza. However, because an elevated temperature is one common sign of influenza, it may be prudent during a pandemic to send home all employees who have temperatures above a certain level.

If a temperature test is a medical examination under the Americans with Disabilities Act (ADA), an employer can require it only if the test is job-related and justified by business necessity. One would hope and expect most judges would recognize that a true pandemic in the employer's geographic vicinity establishes the necessary job-relatedness and business necessity.

An employer can strengthen its legal position if its decision to start screening is implemented upon advice from public health authorities or medical professionals. In the event of an actual pandemic, however, medical professionals will be focusing on saving lives as opposed to keeping businesses operational. Therefore, before any crisis employers may want to consult with medical professionals about the trigger points for screening so they can rely on that medical advice later if their operational decisions are attacked.

Employers also need to consider what they will say to employees denied access to the workplace because of a temperature test. Employees should be told that they are being denied access not because the employer has concluded they have the flu but because of the fever that may correlate with the flu. These employees should be encouraged to consult with their own doctors.

Making clear that the employer is relying on symptoms only and not making any diagnosis should help minimize the employer's exposure to a perceived disability claim under the ADA or a state law that covers medical conditions not covered by the ADA.

Equally important, employees permitted to report to work should be told that "passing the test" does not mean that they do not have the flu. It means only that they do not have certain symptoms that may correlate with the flu.

We wouldn't want employees allowed to work to assume that they have been given a clean bill of health and be able to argue later that they relied upon it to their detriment.

During the planning phase, employers need to prepare these and other scripts to deal with medical and other issues. During an actual crisis, there may not be time for the careful thinking necessary.

'Go Home'

Employers also need to consider guidelines for sending working employees home. Because there is no test for whether an employee has, the flu, employers will need to focus solely on symptoms. If an employee exhibits certain symptoms, such as coughing and shivering, the employer may wish to send the employee home.

But, again, the employer would need to make clear that it does not know whether the employee has the flu and that the employee should consult a doctor.

In determining when to deny access to an employee and when to send an employee home, ideally employers should rely on medical advice. However, during the last phase of a pandemic, it may be difficult, if not impossible, to find a medical professional to provide advice specific to each individual employee.

For this reason, employers need to develop general guidelines with medical professionals in advance.

In all cases, employers need to ensure confidentiality of medical information. Even during a pandemic, casual or careless disclosures of medical information may result in liability under the ADA for breach of confidentiality or tort liability for invasion of privacy.

Refusal to Work

Also consider what to do if an employee who can work refuses to work because of fear of becoming infected. Does an employer have a right to terminate such an employee?

Under the U.S. Occupational Safety and Health Act regulations, an employee faced with a hazardous condition in the workplace may choose not to perform an assigned task because of an objectively reasonable apprehension of death or serious injury. Furthermore, the employee's apprehension must be coupled with a reasonable belief that there is no less-drastic alternative. (29 C.F.R §1977.12(b)(2)).

Whether an employee will be able to meet this standard in a pandemic is far from clear. It will depend on, among other issues, what infection control steps the employer has put into place to make the employee's argument objectively unreasonable.

However, even if an employer could fire employees who refuse to work because of fear, it may not want to do so. During a crisis, employers need to rely on the good will of their employees. An employer that appears insensitive to what may be seen as legitimate fears may lose some of that good will.

At the same time, if an employer does not compel those to work who can, those who do work may be stuck working excessively long hours. For this reason, as part of the business continuity plan, the employer may consider providing compensation beyond that required by the Fair Labor Standards Act (FLSA) to employees who work excessive overtime.

For example, for nonexempt employees, the employer may wish to agree to pay double time for overtime above a certain number of hours in a week or day. For exempt employees, the employer may wish to agree to provide compensation beyond their guaranteed salaries.

Telecommuting

In some cases, the inability to work will not be absolute. Some employees who cannot come to work or who should not report to work may be able to do some work from home. In an influenza pandemic, liberalizing telecommuting policies and practices will be an essential part of remaining operational.

As part of a business continuity plan, assess what essential functions can be performed by employees at home during an emergency. To survive, employers will need to think creatively and expansively.

Shut Down

Because of the absence of personnel, customers or clients during a pandemic, employers may have to temporarily shut down certain operations. In fact, employers may wish to offer only essential functions.

Employers need to be mindful of the FLSA salary basis requirement as applied to exempt employees when shutting down operations in whole or in part.

Generally speaking, if an exempt employee is "ready, willing and able" to work, the employer must pay the exempt employee if the employer prevents the employee from working. The only exception is if the exempt employee does not do any work for an entire workweek.

Accordingly, an employer that shuts down for only a few days must pay exempt employees but not nonexempt employees under the FLSA. Of course, this would create an employee relations nightmare, so the employer may want to pay all employees for short shutdowns.

The FLSA also must be considered when the employer is open for business but an exempt employee is unable physically to report to work. If an exempt employee does any work from home, online or otherwise, he or she most probably must be paid for the entire day. Employers generally cannot dock exempt employees for partial days of absence, subject only to absences covered by the FMLA.

Return to Work

Employers also need to consider what documentation they will require of an employee who wishes to return to work from an extended absence attributable to influenza.

Ordinarily, employers would want a doctor's note. However, doctors may not be available to see those well enough to work when they are swamped taking care of those who are not.

As part of the planning process, employers need to consider what kinds of substitutes they will accept during a pandemic crisis. One option: Consider asking the employee to sign a document attesting that he or she has not experienced certain symptoms for a specified period of time. Again, employers will need to develop this document with medical professionals in advance.

Figuring out how to deal with recovering employees is important because these people will provide operating power and are less likely to get the flu again.

Other Reasons for Absences

To stay functional during a pandemic, remember the many reasons employees may be absent, including:

• Illness of a family member.
• Fear of working with infected employees.
• Closing of schools and the need to care for children.
• Quarantine by government decree.
• Lack of public transportation.

In developing a business continuity plan, employers need to consider all of these possibilities.

If schools close, who will take care of the children?

Employers may wish to consider offering child care. Yet during a crisis, everyone will be seeking these limited resources, so employers may want. to pay now for priority service if and when needed.

The same consideration applies to public transportation. There may not be any. Employers should consider contracting now with private drivers.

And, of course, human resource professionals need to consider how they will take care of themselves during a crisis in which they are charged with taking care of everyone else. To be a key part of your employees' survival network, you need a network of your own so others can help take care of you.

Jonathan A. Segal is a partner in Duane Morris' Employment & Immigration Practice Group in the Philadelphia office, focusing on labor and employment issues. When this article was published, he was a partner with WolfBlock LLP.

Reprinted by permission.