Some employers appear to be nervous and bracing for the worst with the World Health Organization having raised the influenza pandemic alert from a phase 4 to a 5 due to an outbreak of swine flu (which we are now being asked to call the “A(H1N1) Virus”). The CDC is providing interim guidance daily regarding the status of the outbreak. While some are downplaying the outbreak, others appear to be taking the warnings more seriously. With many large employers having already developed extensive Pandemic Plans, labor and employment law firms are churning out notices to their clients, urging them to activate their plans and take necessary precautions in the workplace.
In the benefits arena, employers whose employees and family members are impacted by the malicious bug would need to gear up for the fact that benefit plans such as employer-provided health plans and flexible spending accounts will likely get a work-out. Short-term disability programs which are often self-funded by the employer would get significant use as well in addition to paid-time off policies and employee assistance plans. Since most or all of these programs may be considered to be ERISA-covered plans and have either named or functional ERISA fiduciaries who are responsible for overseeing these plans, such individuals should, with the assistance of legal counsel, seriously consider taking steps now to determine whether their providers are prepared for a pandemic.
The CDC currently has a Workplace Planning webpage which may provide large and small employers with needed assistance. Included in their materials is a “Health Insurer Pandemic Influenza Planning Checklist.” See also this section entitled “Workplace Benefits Questions.”
In light of all of this, here are some steps for employers to consider taking in regards to benefits pandemic preparedness:
(1) Identify fiduciaries of benefit plans that might receive heavy usage in the case of a pandemic.
(2) Identify steps their fiduciaries need to take to communicate with insurers and providers about their preparedness to meet increased demand for their services. Document such steps when they are taken. Consider sending a questionnaire to providers, using the CDC’s checklist as a starting place.
(3) Even though EBSA has not as yet released anything in writing about steps fiduciaries need to take in preparing for a pandemic, guidance issued by EBSA many years ago to assist plan administrators in preparing for Y2K might offer some analogous clues as to what the agency might expect of plan fiduciaries if faced with a pandemic.
(4) Fiduciaries should work through, with their advisors, how a pandemic might affect their benefit plans and consider preparing now a benefits communications document regarding pandemic issues.
(5) Make sure that Summary Plan Descriptions and benefits booklets are up-to-date so that employees and their dependents can access accurate information that they might need in case of a pandemic.