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Swine flu scare raises legal issues

When the swine flu scare hit last week, two large law firms were ready with information and a catalog of legal issues that might arise during a pandemic.

Troutman Sanders LLP issued a news release and launched Web pages to tout its expertise in the area of pandemic concerns.

McGuireWoods LLP was close behind with a news release on legal issues businesses should address in light of the spreading virus.

Troutman’s “Swine Flu Update” focused on what healthcare providers should be doing to get ready for a major outbreak that could boost staff absenteeism while raising the volume of patient calls.

McGuireWoods offered a list of issues all businesses should consider to prepare for a possible pandemic.

McGuireWoods partner Joseph P. McMenamin is both a doctor and a lawyer. His experience includes practice as an emergency room physician and legal work helping clients with pandemic and medical emergency planning.

Responding to calls about the H1N1 (swine flu) virus, McMenamin said he does a lot of legal “triage,” spotting issues and referring clients to the source of the right expertise.

“It touches more areas than one might immediately assume,” McMenamin said. “It has required me to learn at least a little bit about areas that I hadn’t previously focused on.”

Labor and employee issues are first on his list, including concerns about requiring workers to submit to tests, wear protective gear or take time off. Then, he says, there are questions about contract law, including whether a pandemic constitutes a “force majeure” that might excuse late performance on a contract.

Businesses also worry whether they will be covered by insurance if the flu shuts down operations.

“A lot of insurance carriers take the position that there is no coverage – in spite of the fact that there is business interruption insurance – on the basis that the damage is not to plants-and-equipment or bricks-and-mortar, but to human beings,” McMenamin said.

McMenamin said clients need advice on what to say when they get questions from workers, customers, suppliers, shareholders, regulators and the media. “How can I stay out of trouble in answering these questions that are going to come to me, especially when I don’t have as much information at my fingertips as I’d like to have?” he said.

Corporation law also can come into play. McMenamin said corporate board members might wonder if they have a duty to mitigate the damages of a flu pandemic and whether aggressive stockholders could seek some sort of recovery on such a theory.

A business can even be shut down by police. McMenamin said if officials need to act to protect citizens in the event of a major pandemic, folks will be surprised at how much authority government really has.

“It is remarkable how much power your Uncle Sam has at his fingertips, to say nothing of your governor, your mayor, or your city councilman,” McMenamin said. “There is authority that allows municipal and other local governments to shut down buildings, certain parts of town, to control the sale of commodities of certain kinds, to basically put you out of business for the time being if they believe that that’s necessary for the protection of public health.”

For healthcare providers, the Troutman news release advises:

• Review and update pandemic influenza response plans;

• Consider how to handle an influx of patients and worried relatives, and what to do when supplies run out;

• Communicate with local and state health departments to understand what the authorities will expect from the provider if there is a local outbreak.

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