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  • Cynthia KontraFilion Wakely Thorup Angeletti
    LLPSeptember November 2009
  • Lecture 10
  • H1N1 and Flu Pandemic

The Effect of a Flu Pandemic on the Workplace
  • Should employers and workers be concerned?
  • What type of legal and practical consequences can
    be anticipated?
  • What steps should be taken to prepare?

In the beginning...
Should employers and workers be concerned?
  • Be concerned, but dont panic!
  • Medical experts told us that it was not a
    question of if a pandemic will occur, but
  • We need to prepare ourselves now to effectively
    deal with the current emergency.

Near Miss
  • A near miss is an unplanned event that did not
    result in injury, illness, or damage - but had
    the potential to do so. Wikipedia
  • Only a fortunate break in the chain of events
    prevented an injury, fatality or damage.
  • Although human error is commonly an initiating
    event, a faulty process or system (including lack
    of preparation) invariably permits or compounds
    the harm, and is the focus of improvement.
  • Also known as a "close call

  • If you nearly miss something, don't you hit it?
  • At first blush, "near miss" does seem to be a
    contradiction in terms, even though it's a
    popular phrase, especially applicable to health
    and safety
  • Merriam-Webster's Dictionary of English Usage
    (1994), traces the phrase to World War II one
    can only imagine! and concludes that, despite
    its apparent lack of logic, it is not an error.
  • Fowler's Modern English Usage defines a near miss
    simply as a miss that was nearly a hit.
  • SARS in 2003 was both a near miss and a hit!
  • What will H1N1 be?

Near Miss SARS 2003
  • SARS (Severe Acute Respiratory Syndrome) was a
    large scale health emergency in the Spring of
    2003 that impacted countless workplaces,
    particularly in the health care sector
  • SARS is a severe form of pneumonia, which is
    accompanied by a fever
  • SARS is spread by close personal contact with a
    person who has SARS, through droplets from
    coughing or sneezing, or from direct face-to-face
  • The disease initially surfaced in Canada in March
    of 2003 - by September 3, 2003 there were 438
    cases of SARS in Canada, and a total of 43 deaths

The Impact of SARS
  • SARS was declared a provincial emergency on March
    26, 2003 the emergency status lasted nearly two
    months and was lifted on May 17, 2003
  • During the height of the emergency, the Ontario
    Ministry of Health was advising anyone exhibiting
    symptoms to go into voluntary quarantine
  • The unanticipated SARS emergency demonstrated
    that many employers were unprepared to deal with
    the complex array of health, financial and
    operational issues associated with fending off
    the threat
  • Although it lasted only one season and is
    apparently under control, SARS or something worse
    could resurface at any time

Fear of a Flu Pandemic
  • The potential of the current outbreak of H1N1 to
    become a global pandemic is what is known as a
    realistic threat
  • As well, the growth in occurrences and mutations
    of strains of the Avian Flu or Bird Flu virus
    have scientists and medical experts believing
    that it is only a matter of time before the next
    influenza pandemic occurs

Flu Pandemics Recent History
  • The risk of an airborne flu virus is very
  • Flu pandemics occur, on average, 3 times each
    century (according to the World Health
  • 1918-19 Spanish flu 50 million deaths
  • 1957-58 Asian flu 1 million deaths
  • 1968-69 Hong Kong flu 1-4 million deaths
  • It has been almost 40 years since the last flu
    pandemic many in the scientific and medical
    communities believe that we are overdue for the
    next one.

What is H1N1?
  • H1N1 just like any other flu is a respiratory
    infection. It exploits a weakened immune system
    to attack major organs especially your lungs.
  • The H1N1 flu virus is contagious and is spread
    the same way as regular seasonal influenza. This
    happens when an infected person coughs or sneezes
    and their germs enter the nose, eyes, or throat
    of another person. The germs can also rest on
    hard surfaces like counters and doorknobs, and
    can be picked up on hands and transmitted to the
    respiratory system when someone touches their
    mouth and/or nose. It is not possible to catch
    it by eating pork or pork products or through
    blood transfusions.

History of H1N1
  • Mexican authorities in April 2009 reported they
    were investigating a new strain of swine
    influenza. The outbreak had spread quickly in the
    country, killing more than 100 people. Two months
    later, in June 2009, the World Health
    Organization declared a swine flu pandemic the
    first time a global flu pandemic had been
    declared in 41 years. humans, causing severe
    illness with high mortality
  • As of October 2009 the World Health Organization
    reported roughly 6,750 deaths worldwide from
    H1N1, including roughly 250 in Canada.
  • See http//

Impact on the Workplace
  • The effects of an epidemic are unpredictable,
    BUT, expect high levels of absenteeism, illness
    and disability
  • Many employees may become ill at the same time
  • The illnesses may persist for long periods of
  • Workplaces may have to be quarantined (although
    quarantine likely would be medically ineffective)
  • People may refuse to report for work for fear of
    contracting the influenza virus at the workplace
  • There may be mass societal disruptions
  • Employees may choose to stay home to care for
    their ill family members or if schools are closed

Wise Words from the Past
  • By failing to prepare,
  • You are preparing
  • to fail.
  • Benjamin Franklin

Employers Obligations
  • Because of their role in society, employers can
    play a huge part in dealing with public health
    crises before and during
  • Employers have legal obligations that arise from
    various statutes often conflicting
  • Employers have an obligation determine the
    measures that need to put in place to protect
    workers from infectious diseases, including the
    H1N1 flu virus
  • Canadian doctors have advised that employer stop
    requiring doctors notes for potential H1N1
    cases, as it is overburdening the health care

Employers Role
  • Good employers will want to find out
  • What the public health issue is,
  • Who is at risk,
  • The causes,
  • The symptoms and
  • What should be done to protect the workforce.
  • A key role for an employer is that of informed

Health Legislation
  • Occupational Health and Safety Determine the
    various duties of the employer and employees
  • Consider the impact of possible work refusals.
  • Workplace Safety and Insurance Benefits may be
    payable if H1N1 was contracted at the workplace
  • Consider H1N1 as an occupational disease

Focus onOccupational Diseases
  • The Workplace Safety and Insurance Act provides
    compensation where,
  • a worker suffers from and is impaired by an
    occupational disease that occurs due to the
    nature of one or more employments in which the
    worker was engaged
  • The definition of occupational disease should be
    broad enough to encompass diseases such as the
    Avian Flu, West Nile, SARS, or H1N1, provided it
    can be demonstrated, on a balance of
    probabilities, that it was contracted at the

Who Could be Entitled to Benefits?
  • In the case of SARS, the WSIB had advised that
    workers with symptoms of SARS who believed they
    were infected in the course of their employment
    may be entitled to WSIB Benefits. No
    announcement of this kind has yet been made with
    respect to H1N1.
  • Each workers compensation case is assessed on
    the basis of its own individual facts the WSIB
    is reluctant to make sweeping pronouncements in
    respect of eligibility

Entitlement During Quarantine
  • One has to be sick in order to get benefits
    workers who are symptom free, but are subject to
    quarantine or have been sent home as a
    precautionary measure, should not get benefits
  • On the other hand, if symptoms develop during
    quarantine or voluntary isolation, the worker
    may be entitled to WSIB Benefits if the
    symptoms or illness are compatible with
    occupational exposure

WSIB Claims - SARS
  • It can be fairly assumed that employers in the
    health care sector are at risk of increased
    workers compensation claims in the face of
    communicable diseases
  • Since there appeared to be conclusive evidence of
    transmission of SARS in health care environments,
    it is likely that health care workers who became
    ill will SARS symptoms during the outbreaks would
    have WSIB claims approved
  • It would be more difficult for an employee in a
    non-health care setting to establish a claim for
    benefits because of the unique nature of the
  • In any case, it is not enough to be a worker who
    had SARS symptoms the disease must have arisen,
    on a reasonable analysis, from the workers own

WSIB Claims West Nile
  • The WSIB has also advised that workers who are
    infected with West Nile Virus in the course of
    their employment may be entitled to WSIB
  • Employees required to work outdoors are at
    greater risk, but even an employee who does not
    work outdoors could be bitten by a mosquito
    carrying the West Nile Virus while at work or
    while sitting outside for lunch
  • A lunch break taken at the workplace is a period
    of time that likely would be covered by the WSIA,
    so long as the worker is engaged in normal
    lunchtime activities

WSIB Claims H1N1
  • By contrast with SARS or even West Nile Virus, a
    flu pandemic like H1N1 can be expected to hit in
    ALL workplace settings
  • It may be true that health care settings will
    have the most employees affected by such an
    outbreak, but manufacturing plants and offices
    are likely to be as widely affected as the norm,
    not just in exceptional cases

WSIB Claims Flu Pandemic
  • As with SARS or West Nile, it is fully expected
    that claims for WSIB Benefits during an H1N1
    pandemic will be treated on a case by case basis
  • Workers making claims will have to prove that
    they not only contracted and suffered from a flu
    virus, but that it was contracted from the
    workers own workplace

Employment Standards
  • Emergency leave, section 50
  • Up to 10 days of leave per year that can be used
    for personal use or caring for sick relatives.
  • Family medical leave, section 49.1
  • Up to 8 weeks of leave to provide care or support
    to a seriously ill family member who has a
    serious medical condition and who has a
    significant risk of death.
  • A further leave of up to 8 weeks, if the family
    member does not die within the first period of

Human Rights
  • Employees must be protected from discrimination
    and harassment (e.g. employees of an Asian origin
    during the SARS outbreak).
  • Definition of disability includes diseases and
    other medical conditions such as SARS, and
    presumably would be expanded to include H1N1.

Health ProtectionMobility Restrictions
  • Health Protection and Promotion Act Medical
    officers have broad powers to restrict mobility.
  • Powers of a medical officer of health include
  • Closing premises, including workplaces
  • Isolation of one or more persons (quarantine)
  • Cleaning, disinfection or destruction of things
  • Compulsory medical examination of individuals
  • Restricting conduct of persons to ensure that
    others are protected from the possibility of
  • Powers may be exercised without individual consent

Employment Insurance
  • Employment Insurance (EI)
  • The EI Act allows for up to 15 weeks of sickness
  • Eligibility requires 600 hours of work in past 52
  • Amendments were made during SARS to allow claims
    for those quarantined.
  • Usual requirement to produce a medical
    certificate relaxed.
  • Special SARS grant for health care workers.
  • Such amendments may also apply in the case of an
    Avian Flu outbreak.

Quarantine for Travelers
  • Updated Quarantine Act
  • A traveler who enters or leaves Canada may have
    to undergo a health assessment
  • if it is suspected that the person may have
    been exposed to a communicable disease.
  • Travelers may be screened, examined, disinfected,
    and detained until any risk of infection has
  • Airplanes and other conveyances may be
    inspected, disinfected, and detained.

Privacy - PIPEDA
  • Personal Information Protection and Electronic
    Documents Act (PIPEDA)
  • Disclosure of personal information to 3rd
  • Does not deal directly with Ontario workplaces
  • Employers cannot disclosepersonal information
    about employees without consent.
  • Applies in Ontario and any other province
    without similar legislation.

Privacy - PHIPA
  • Ontarios Personal Health Information Protection
    Act, 2004 (PHIPA)
  • Restrictions on the collection, use and
    disclosure of personal health information by
    medical professionals.
  • Employers are limited in their access to
  • Employers are information custodians (and are
    subject to the limitations of the legislation)
  • Issue confidentiality vs. health of other
  • In 2003, Ministry of Labour advised employers to
    tell public health officials about SARS
    cases,but not to disclose information to the

Planning on a National Level
  • A May 3, 2006 United States Congress report
    entitled National Strategy for Pandemic
    Influenza provides proposals for how to prepare
    for and respond to an influenza pandemic
  • The Strategy is intended to
  • stop, slow or otherwise limit the spread of a
    pandemic to the United States
  • limit the domestic spread of a pandemic, and
    mitigate disease, suffering and death and
  • sustain infrastructure and mitigate the impact to
    the economy and functioning society
  • For Canadas current plan with respect to H1N1 as
    well as information for employers, employees and
    the general public, visit http//

Responsibilities of the Private Sector
Flu Control Prevention
  • Employers should encourage workers to protect
    their health and engage in preventative measures
    such as
  • Stay healthy eat well, get lots of rest and
  • Wash or sanitize your hands before touching,
    eating or preparing food and after sneezing,
    coughing or using the washroom
  • Avoid coughing into your hands use the crook of
    your elbow if you dont have tissues
  • Keep your hands away from your face the flu
    virus enters your body when germs get on your
    hands and you touch your eyes, nose or mouth
  • If personal protective equipment is needed at
    work, make sure it fits properly and is being
  • If travelling overseas, be aware of any possible
    diseases and their prevention at the destination
  • Encourage sick workers to stay at home

Prevention Drugs
  • There is currently a vaccine being offered for
    H1N1 that will provide individuals with some
    immunity to H1N1 within 10 days of receiving the
  • Generally, vaccines are safe. The dangers from
    vaccine-preventable diseases (like the flu) are
    many times greater than the risk of a serious
    reaction to the vaccine. However, individuals
    should consult their physicians.
  • The H1N1 vaccine is not currently mandatory in
    Canada, however there is case law suggesting that
    employers in the health care sector (and
    potentially other sectors) can require their
    employees to be vaccinated.

Make a Pandemic Business Plan
  • If a pandemic occurs, all workplaces should have
    a plan in place to not only deal with the threat
    to the health of workers, but to address the
    inherent and serious business disruptions
  • It is imperative that a plan identify what facets
    of the business and which workers are essential
    to business continuity
  • Identification of the Core People and Core Skills
    required to maintain delivery of essential goods
    and services during a potential crisis is vital
  • Back up essential business information and ensure
    it is readily available in the event of a
    pandemic crisis

Planning for Large Absences
  • Can employees work from home? If a pandemic
    occurs, protecting the health of employees while
    sustaining the operation of the business may
    depend on it.
  • What portions of the business can be shut down?
    Who will make this decision?
  • Are there back-ups in place? If a pandemic
    occurs, are there back-up workers who can perform
    the essential roles and who have the essential
    skills? Are there back-up decision makers?
  • Are effective communication methods in place?
    There is a good possibility that many workers
    will be away from the workplace during a
    pandemic how will you reach them when

Communication and Partnerships
  • Identify and set up essential communication
    networks with workers, suppliers,
    clients/customers, etc.
  • Establish partnerships with other organizations
    like yours for dealing with a pandemic crisis
    this is particularly important for businesses
    providing essential services
  • Set up shared access locations for contingency

Need for a Contingency Plan
  • Can you afford NOT to have a plan?
  • Business interruptions are expensive!
  • Who will make decisions?
  • The Human Resources Department should play a
    key role.
  • Can you shut down?
  • Can you re-start or ramp up quickly?

Contingency Plan Components
    download or buy a plan customize it!
  • Identify essential duties and plan for those
    employees absence.
  • Anticipate the potential of high levels of
  • Consider the impact in a unionized environment.
  • Negotiate emergency powers
  • Keep the union in the loop, or
  • Be prepared to deal with the grievances

Contingency Plan contd
  • Quarantined building Alternative location?
    Staff work from home? Quarantined staff operate
    the business?
  • Leave policies Decide in advance
  • What will be sick time?
  • Paid time off granted?
  • Human resource policies OT, scheduling issues,
    payment for cancelled shifts, payment of
    employees not permitted in the building, travel
  • Organizing remaining staff

Contingency Plan contd
  • Replacement workers
  • Identify who to replace and how to do it.
  • Working from home
  • Travel and group meeting policies
  • Communications who and how
  • Health and safety train staff on protective
    equipment and their duties under the OHSA
  • Counseling stress and grief

Plan Development 7 Steps
  • Establish Committees and Chain of Command
  • Identify and assess priorities develop
  • Communicate the plan internally and externally
  • Train employees primary and back-up roles
  • Make plan available in hard and soft copies
  • Continuously review and improve Plan
  • Once implemented, continuously test and improve
    Plan it will never be perfect

During an Outbreak
  • Plan ahead and utilize a virtual office to the
    extent possible working from home
  • Maintain lines of communication at all times
  • Limit travel to places under advisory warning
  • Re-schedule meetings
  • Conference call, videoconference
  • Healthcare workers ongoing staff training
  • Limited right to refuse work

Steps Undertaken by Employers
  • Some employers have made use of the valuable
    lessons learned from the SARS experience.
  • O-I Canada manufacturing - has been proactive
    in developing an emergency protocol that
  • Manages employees who have or are suspected of
    having a contagious disease whether on or
  • Supports the training of personnel in the
    screening of contagions and
  • Required all plant visitors during the SARS
    outbreak to provide their name, business and
    home telephone numbers to allow for prompt

More Steps
  • The Regional Municipality of Halton is another
    proactive employer and community leader in
    providing up-to-date information on the growing
    influenza threat, including
  • Creating a comprehensive public emergency health
    plan for the community
  • Developing a protocol for allocating employees to
    essential services in order of priority
  • Sharing information with other employers
  • http//

Analogous Security Concerns
  • 9/11, 7/7, Pandemic Are you prepared?
  • Is there a protocol in place?
  • Who is in charge of decision-making and
  • What backup exists if those in charge are out of
    the office, on vacation or incapacitated?
  • Is there any off-site backup of decision-makers
    and critical information?
  • Are there contingency plans in place and
    appropriate emergency equipment if there were a
    failure in regular or cell telephone networks,
    not to mention web-based communication and
    internal email?

Pandemic Preparedness Checklist - Overview
  • The WSIB has a prepared a 4 page Pandemic
    Preparedness checklist that is a invaluable tool
    for workplaces in pandemic planning
  • It provides detailed methods for ensuring
    responsible and proper planning on all levels,
  • Identification of Core People and Core Skills
  • Plan for Large Absence (10 to 50)
  • Protection of staff health
  • Communications and Knowledge Management
  • The checklist is a thorough model and can be
    found on the WSIBs website at http//www.wsib.on.

Pandemic Preparedness Checklist - 1
  • Identify a pandemic coordinator and/or team with
    defined roles and responsibilities for
    preparedness and response planning. The planning
    process should include input from labour
  • Identify essential employees and other critical
    inputs (e.g. raw materials, suppliers,
    subcontractor services/ products, and logistics)
    required to maintain business operations by
    location and function during a pandemic.
  • Plan for impact on financials.
  • Train and prepare ancillary workforce (e.g.
    contractors, employees in other job titles/
    descriptions, retirees).
  • Develop and plan for scenarios likely to result
    in an increase or decrease in demand for your
    products and/or services during a pandemic (e.g.
    effect of restriction on mass gatherings, need
    for hygiene supplies, travel restrictions).
  • Implement an exercise/drill to test your plan,
    and revise periodically.
  • Set up authorities, triggers, and procedures for
    activating and terminating the companys response

Pandemic Preparedness Checklist - 2
  • Plan for Large Absence (10 to 50, perhaps more
    different phases)
  • Forecast and allow for employee absences during a
    pandemic due to factors such as personal illness,
    family member illness, community containment
    measures and quarantines, school and/or business
    closures, and public transportation closures.
  • Identification of Core People and Core Skills
  • Establish policies for employee compensation and
    sick-leave absences unique to a pandemic (e.g.
    non-punitive, liberal leave), including policies
    on when a previously ill person is no longer
    infectious and can return to work after illness.
  • Establish policies for flexible worksite (e.g.
    telecommuting) and flexible work hours (e.g.
    staggered shifts).
  • Establish policies for employees who have been
    exposed to pandemic influenza, are suspected to
    be ill, or become ill at the worksite (e.g.
    infection control response, immediate mandatory
    sick leave).

Pandemic Preparedness Checklist - 3
  • Protection of staff health
  • Find up-to-date, reliable pandemic info from
    community public health, emergency management,
    and other sources and make sustainable links.
  • Implement guidelines to modify the frequency and
    type of face-to-face contact (e.g. handshaking,
    seating in meetings, offi ce layout, shared
    workstations) among employees and between
    employees and customers.
  • Encourage and track annual influenza vaccination
    for employees.
  • Evaluate employee access to and availability of
    occupational and mental health and social
    services during a pandemic, including corporate,
    community, and faith-based resources, and improve
    services as needed.
  • Identify employees and key customers with special
    needs, and incorporate the requirements of such
    persons into your preparedness plan.
  • Establish policies for preventing influenza
    spread at the worksite (e.g. promoting
    respiratory hygiene/ cough etiquette, and prompt
    exclusion of people with influenza symptoms).
  • Provide sufficient and accessible infection
    control supplies (e.g. hand-hygiene products,
    tissues disposal receptacles) in all business

Pandemic Preparedness Checklist - 4
  • Develop and disseminate programs and materials
    covering pandemic fundamentals (e.g. signs and
    symptoms of influenza, modes of transmission),
    personal and family protection and response
    strategies (e.g. hand hygiene, coughing/sneezing
    etiquette, contingency plans).
  • Anticipate employee fear and anxiety, rumours and
    misinformation and plan communications
  • Provide info for the at-home care of ill
    employees and family members.
  • Communications Knowledge Management
  • Establish an emergency communications plan and
    revise periodically.
  • This plan includes identification of key contacts
    (with back-ups), chain of communications
    (including suppliers and customers), and
    processes for tracking and communicating business
    and employee status.
  • Enhance communications and information technology
    infrastructures as needed to support employee
    telecommuting and remote customer access.
  • Ensure that communications are culturally and
    linguistically appropriate
  • Disseminate info to employees re pandemic
    preparedness response plan.

Pandemic Preparedness Checklist - 5
  • Develop platforms (e.g. hotlines, dedicated
    websites) for communicating pandemic status and
    actions to employees, vendors, suppliers and
    customers inside and outside the worksite in a
    consistent and timely way, including redundancies
    in the emergency contact system.
  • Identify community sources for timely and
    accurate pandemic information (domestic and
    international) and resources for obtaining
    counter-measures (e.g. vaccines and antivirals).
  • Collaborate with insurers, health plans, and
    major local healthcare facilities to share your
    pandemic plans and understand their capabilities
    and plans.
  • Collaborate with federal, provincial, and local
    public health agencies and/or emergency
    responders to participate in their planning
    processes, share your pandemic plans, and
    understand their capabilities and plans.
  • Communicate with local and/or provincial public
    health agencies and/or emergency responders about
    the assets and/or services your business could
    contribute to the community.
  • Share best practices with other local businesses,
    chambers of commerce, and safe workplace assocns
    to improve community response efforts.

Conclusion Be Prepared
  • The key point for each workplace to absorb is
  • Spending time and resources now enables
    workplaces to properly cope when an emergency
  • It will be too late to make it up on the fly in
    the middle of a chaotic and unsettling
  • Does your own workplace have a plan?

Reminder - Fighting Back
  • Wash hands!
  • Voluntary Vaccinations
  • Provide them, or offer employees time off to
    get them.
  • Encourage sick employees to stay home.
  • Despite possible abuse of this policy, it is
    still worth it (snowball effect during a

Final Thoughts
  • Employers that are unprepared and ineffective
    will contribute to a dysfunctional community in
    the heart of any public health or security
    emergency - which is bad for all of us, and bad
    for business.
  • There are significant legal issues for employers.
  • At least as important as the law, I suggest that
    there is a fundamental responsibility for
    employers as primary participants in modern
    society to get ready in advance and to provide
    leadership and effective communication when it is
    most required.
  • How are you going to command the time and
    resources necessary to prepare?
  • How fast will your business bounce back?