What is an employer's duty to address a potential pandemic? A pandemic is a global disease outbreak. According to OSHA, during a pandemic transmission can be anticipated in the workplace not only from patient to workers in healthcare settings, but also among co-workers in general work settings. The human swine flu outbreak continues to grow in the United States and internationally. The World Health Organization recently raised the worldwide pandemic alert level to Phase 5. A Phase 5 alert is characterized by widespread human infection in more than two countries and a pandemic is considered imminent.

On Monday, Janet Napolitano, Secretary of Homeland Security, addressed the need for employers to help the federal and state governments protect their employees. "We are reaching out to the private sector to make sure that they are preparing and to inform them of the latest actions we are taking. It's important that they are thinking ahead about what they would do should this erupt into a full-fledged pandemic, which it has not yet, by the way."

The "general duty clause" contained in the Occupational Safety and Health Act (OSHA) requires that every covered employer furnish employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. This obligation has become known as the "general duty clause" and has often been the basis of OSHA enforcement actions against employers where no specific OSHA standard applies.

To assist employers in protecting employees' health and safety, the Department of Health and Human Services (HHS) and the Centers for Disease Control (CDC) have developed a checklist for businesses that identifies important, specific activities businesses can do now to prepare. Information can be found at www.pandemicflu.gov and www.CDC.gov/business. For more information about pandemic influenza, see One-Stop Access to U.S. Government Avian and Pandemic Flu information on the Occupational Safety and Health Administration's website. Employers need to consider issues that may concern their workplace as they monitor and respond to the current swine flu outbreak:

• Can you prohibit employees from coming to work if they have been exposed to swine flu?
• What happens if employees are afraid to come to work? Can you compel them to do so?
• Is it appropriate for us to administer vaccinations or preventative medication?
• Are we required to provide warnings to our employees?
• Does the general duty clause take precedent over the ADA, FMLA or any other relevant employment law?