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Swine Flu Plans Triggering Difficult Legal Questions, Says Noted Pillsbury Attorney
Date:4/28/2009

Managing sick and concerned workers, navigating quarantine barriers and liabilities are just a few of the impact areas facing epidemic-wary managers

NEW YORK, April 28 /PRNewswire/ -- Business managers following swine flu's (H1N1 influenza) spread and monitoring government advisories should prepare to handle difficult legal issues triggered by an escalating epidemic or worst-case pandemic scenario, says New York litigation partner Kenneth W. Taber, head of Pillsbury's Disaster Planning and Liability Management Team, which advises the City of New York and other clients on emergency and disaster response plans for natural disaster, epidemic, terrorism and other crisis scenarios.

"Epidemics pose particularly difficult issues because unlike a hurricane or terrorist bomb, the scope of impact is not immediately clear and changes rapidly," Taber explains. "Compared to asking when a fire can be extinguished or electricity restored, diseases present companies with more complicated questions, such as whether they can lawfully demand employees provide proof of vaccination, bar sick employees from the office or compel healthy -- but fearful -- staff from reporting for work."

Taber adds that even well-intentioned companies seeking to accommodate employees' concerns and assist health authorities can inadvertently incur liability if they distribute medications, for example. They can also run afoul of provisions in the Health Insurance Portability and Accountability Act (HIPAA) and Americans with Disabilities Act (ADA) if certain health records are improperly shared or flu-infected workers allege discrimination. He notes that some organizations, such as federally-supported universities and government contractors are subject to different regulations apart from other areas of the private sector.

Because disease outbreaks are difficult to identify and contain quickly and can persist over time with varying effects, Taber advises clients to take an integrated approach to planning for all manner of related business disruptions, from reduced staff levels to constricted supply chains, missed deadlines and service failures.

"After addressing their top priority of human health and welfare, organizations have to look at what could happen in adverse impact; if an offshore parts supplier or service provider is in a particularly hard-hit region and incapacitated or if the company itself is unable to serve customers due to an epidemic -- liabilities and legal implications could vary," Taber explains.

"Quarantines can cause significant disruptions. Clients need to determine whether they will follow voluntary quarantines affecting their workforce, or how tightened border screening of potentially contaminated goods and travelers will affect their logistics and business travel requirements. These questions are best asked in advance, before costly delays and interruptions force the issue."

Taber recommends that organizations routinely review, revise and test their emergency response plans to ensure they reflect both changing needs of the organization and accepted risk and compliance levels.

"Epidemics lead many businesses to cancel travel and encourage employees to work from home -- putting higher demand on computer systems and IT staff as a result," he notes. "Unless management has adequately planned for and practiced secure tele-commuting, there could be data privacy risks if employees are untrained on following office technology policies outside their cubicles or use improperly configured laptops -- these are hard problems to fix once employees are stuck at home."

In alliance with the American Red Cross in Greater New York, Protiviti and LMI Government Consulting, Pillsbury's Disaster Planning & Liability Management (DPLM) program has developed a customized proprietary methodology that effectively assesses disaster-related liability exposure and enables crisis management and business continuity plans to be properly aligned with risk management objectives.

Pillsbury's DPLM methodology helps both municipalities and private corporations understand the nature and scope of their exposure to disaster-related liability--calculating the risk, developing legal and operational strategies to manage it, and implementing required changes to an organization's crisis management and business continuity plans.

About Pillsbury Winthrop Shaw Pittman LLP

Pillsbury takes an industry-focused, multidisciplinary approach to litigation, corporate and regulatory matters impacting global business and trade. Our core strengths and 140-year legacy of innovation allow us to anticipate trends to help clients thrive in a changing world, particularly when it comes to energy and the environment, technology (including clean tech and biotech), and infrastructure. We also have strong regulatory experience in those areas facing significant policy reform: financial services, real estate, climate change, executive compensation, and healthcare. In addition to our strong U.S. presence, we serve clients in the world's major financial centers, including London, Tokyo, Shanghai, and most recently, Abu Dhabi, through Pillsbury's affiliation with Agha & Shamsi LLC.


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SOURCE Pillsbury Winthrop Shaw Pittman LLP
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