Avian Flu Diary: Due Diligence

# 3577

due diligence n. The care that a reasonable person exercises under the circumstances to avoid harm to other persons or their property

While I can’t tell you how long the pandemic of 2009 will last, I’m pretty confident in predicting that the legal wrangling over it will go on for years after the pandemic is over.

It doesn’t take a lawyer (which I am not) to know that a fair amount of litigation is going arise out of this crisis, and that a great many liability issues are going to be argued in court.

If you own or operate a business, you might find it prudent to discuss your liability exposure with your legal counsel and insurance provider, now – before the fall wave of the pandemic arrives.

Since I’m not a lawyer, and laws vary from state-to-state and from country-to-country, I will only talk in generalities here. Nothing stated here is intended as specific legal advice, and you shouldn’t take it as such.

Here in the United States, as in many countries, employers have a responsibility to provide a safe workplace, free from recognized hazards.

OSHA, the Occupational Safety And Health Administration, has for several years promoted ways that workplaces can be made safer for employees during a pandemic.

They, along the the CDC and the HHS, have issued numerous pandemic guidance documents – none, albeit, with the force of law – but all with considerable weight, given the source.

While the Federal government hasn’t (as yet) decided to enforce these `recommendations’, that doesn’t let employers entirely off the hook.

There is, you see, a generic clause in the OSH act of 1970 which allows that:

Pursuant to the OSH Act, employers must comply with hazard specific safety and health standards as issued and enforced either by OSHA or by an OSHA-approved State Plan.

In addition, Section 5(a)(1) of the OSH Act, the General Duty Clause, requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

On Pandemicflu.gov FAQ on workplace questions, the following is asked:

Could an organization be held liable if their employees or customers contract pandemic influenza while working at or visiting its place of business?

Answer:

It is possible, especially in cases where you knew about these health concerns and failed to take the appropriate action (i.e., reasonable steps to mitigate the possible affects including instituting social distancing, good hygiene and infection control practices in the workplace).

The Department of Labor's Occupational Safety and Health Administration has provided workplace safety and health guidance that will help employers prepare for an influenza pandemic.

Given the vagaries of the law, and the whims of sympathetic juries, I certainly can’t predict how these sorts of lawsuits would turn out.

But whether an employer were eventually found liable or not, defending themselves in court can be an expensive proposition.

Employers need to consider how they would justify their actions (or lack thereof) to a jury deliberating potential liability.

Did they take reasonable and prudent steps to ensure the safety of their workplace? Or did they, through inaction or ill advised policies, contribute to the danger for their employees?

Serious questions deserving of more than cursory attention.

Additionally, the steps employers take now to protect employees may greatly influence how willing they may be to continue to work through the pandemic. And that may determine whether your company can remain viable during the crisis, and after it passes.

Another `bottom line’ consideration to take into account.

If you haven’t done so already, now is a good time to visit the OSHA pandemic information page, and to download the PDF file called Guidance on Preparing Workplaces For an Influenza Pandemic.