Bradford T. Hammock

The spread of Ebola hemorrhagic fever (EHF) and the incidence of Ebola cases in the United States have raised issues for employers and employees on the appropriate workplace responses. Workplace safety and health, including measures to protect employees, leave and health management, labor relations and workplace privacy concerns all are implicated.

This article discusses the workplace law issues that may be presented. Cascading developments soon will add to the questions business and other organizations have to answer. Employers are encouraged to continue to follow Centers for Disease Control and Prevention (“CDC”) guidance related to the disease as it is updated, along with information from other federal, state and local government agencies involved in the response. Information regarding the CDC’s response and recommendations can be found here.

Background

EHF is caused by infection with an Ebola virus. EHF typically is associated with fever, muscle pain, headache and sore throat. Other symptoms, including nausea, vomiting, diarrhea and impaired organ function, may appear as the illness progresses. Symptoms of EHF arise within two days and 21 days after exposure, but eight days to ten days is the average.

The CDC categorizes the Ebola virus as a Category A select agent. This means that it poses a risk to national security because it can be easily disseminated or transmitted from person to person, can result in high mortality rates and has the potential for major public health impact, may cause public panic and social disruption, and can require special action for public health preparedness.

According to the Occupational Safety and Health Administration (“OSHA”), EHF is not generally spread through casual contact. The virus is transmitted primarily by direct contact with (1) body fluids (e.g., blood, vomit, urine, feces, sweat, semen, spit, and other fluids) of a person who is sick with or has died from Ebola, (2) objects contaminated with the virus (e.g., needles and medical equipment), and (3) infected animals (by contact with blood or fluids or infected meat).

The CDC has been monitoring the spread of the virus. As of October 16, 2014, the CDC has issued a Level 3 travel notice (avoid all non-essential travel) for three West African countries: Guinea, Liberia and Sierra Leone. Other countries, however, also have experienced cases, including the United States. Travel advisories are updated from time to time by the CDC and should be checked if overseas travel is planned.

In the U.S., cases of transmission of the virus have occurred in the health care setting. OSHA has stated, “Currently, Ebola virus and EHF do not pose a threat to most U.S. workers.” However, OSHA also has recognized that “Ebola viruses are capable of causing severe, life-threatening disease. Many people who get EHF die from it.”

Workplace Safety and Health Considerations

The first consideration for employers relates to risks associated with employee exposure to the Ebola virus and measures to protect employees from such exposure. Risk of exposure is higher in certain industries. Workers performing tasks involving close contact with symptomatic individuals with EHF or in environments contaminated or reasonably anticipated to be contaminated with infectious body fluids are at risk of exposure. OSHA has identified workers in health care, laboratories, the airline industry, other travel service, mortuary and death care, border protection, and emergency responders as having the greatest risk of exposure. OSHA states that workers tasked with cleaning surfaces that may be contaminated with Ebola also must be protected.

From a compliance perspective, OSHA has identified the following standards as potentially applicable to the hazards of Ebola:

  • Bloodborne pathogens (29 CFR 1910.1030)
  • Personal Protective Equipment (29 CFR 1910.132)
  • Respiratory Protection (29 CFR 1910.134)
  • Hazard Communication (29 CFR 1910.1200)
  • Toxic and Hazardous Substances (Subpart Z)

OSHA also has suggested that the General Duty Clause of the Occupational Safety and Health Act of 1970 (Section 5(a)(1)) may require employers to take additional actions depending upon the risks of employee exposure in the work environment.

For employees that must travel to an area affected by the outbreak, the CDC provides the following recommendations:

  • Wash hands frequently or use an alcohol-based hand sanitizer.
  • Avoid contact with blood and body fluids of any person, particularly someone who is sick.
  • Do not handle items that may have come in contact with an infected person’s blood or body fluids.
  • Do not touch the body of someone who has died from Ebola.
  • Do not touch bats and nonhuman primates or their blood and fluids and do not touch or eat raw meat prepared from these animals.
  • Avoid hospitals in West Africa where Ebola patients are being treated.
  • Seek medical care immediately if you develop fever (temperature of 101.5°F/ 38.6°C) and any of the other following symptoms: headache, muscle pain, diarrhea, vomiting, stomach pain, or unexplained bruising or bleeding.

Employers in high-risk industries are encouraged to consult frequently the CDC’s specific guidance related to infection control and prevention. The CDC has developed fact sheets incorporating best practices for the high exposure industries.

Finally, OSHA has published guidance to protect workers tasked with cleaning surfaces that may be contaminated with the Ebola virus. This may be particularly applicable to health care employers, as well as janitorial service companies that provide cleaning crews to worksites that may have potential exposure. Key guidance includes:

  • Isolating areas of suspected Ebola virus contamination until decontamination is completed.
  • Treat any visible contamination or bulk spill matter with a suitable disinfectant before cleaning up.
  • Use tools, such as tongs from a spill kit, as much as possible.
  • Wear suitable personal protective equipment (PPE), including nitrile gloves, fluid-resistant or fluid-impermeable gowns, goggles or face shields, and facemasks.
  • Avoid cleaning techniques such as pressurized air or water sprays that may result in the generation of bio-aerosols (aerosolized droplets containing infectious particles that can be inhaled).

Employment and Labor Law Considerations

In addition to workplace safety and health issues, employers must consider significant employment and labor law issues that an Ebola event may raise. For example, coworkers’ concerns for their own safety about being near an employee who has traveled to or through Level 3 CDC alert countries or has been exposed to the virus should be anticipated and addressed. Similarly, return-to-work protocols for employees who travel to or through these countries are recommended. Employers may consider appropriate return-to-work protocols for individuals who travel to other countries who are not currently experiencing widespread Ebola outbreaks.

Most employment laws were not written with the outbreak of a deadly virus in mind. Perhaps because of this, in dealing with these issues, employers may find there is no effective “risk-free” approach. Rather, an employer may need to evaluate all options and adopt a “risk-management” mindset, choosing the business and legal strategy with which it is most comfortable.

Below are some basic employment law considerations to keep in mind:

  • The Americans with Disabilities Act (“ADA”), among other things, prohibits employers from: (1) discriminating against individuals who have a disability, including those who are “regarded as” having a disability; and (2) making disability-related inquiries (DRI’s) of employees or requiring employees to undergo medical examinations unless it is “job-related and consistent with business necessity.” The ADA also prohibits employers from disclosing confidential medical information, including the identity of an employee with a communicable disease. The law does not require an employer to employ an individual who presents a “direct threat” of harm. A “direct threat” is defined as a significant risk of substantial harm to an employee or others that cannot be eliminated or reduced by a reasonable accommodation. (Determination that an individual poses a “direct threat” is based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job that relies on the most current medical knowledge or on the best available objective evidence.) Nor does the law require an employer to employ an individual who is unable to safely perform the essential functions of the position, either with or without a reasonable accommodation. There are also analogous state laws prohibiting discrimination based on a disability.
  • The Genetic Information Nondiscrimination Act (“GINA”) prohibits an employer from discriminating against individuals based on genetic information and strictly limits circumstances where employers may request an employee’s genetic information (generally defined as information about the manifestation of disease or disorder in family members of the individual). GINA does allow disclosure of genetic information “to a public health agency, if information about the manifestation of a disease or disorder concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.”
  • Section 7 of the National Labor Relations Act (“NLRA”) gives non-supervisory, non-managerial employees the right to engage in “protected concerted activity” for their own mutual aid or protection. Activity is “protected” if it is neither violent nor sufficiently opprobrious. Activity is “concerted” if it is taken by or on behalf of more than one employee and concerns the employees’ terms or conditions of employment, including safety and health. A refusal by a number of employees to work with an employee who traveled to the area or was exposed to the Ebola virus out of concern for their own safety may implicate Section 7.
  • Federal, state and local leave laws such as the Family and Medical Leave Act, state family and medical leave laws, state and local paid sick leave laws may allow employees to take time off for diagnosis and treatment of either the employee’s medical condition or that of a family member.
  • State medical privacy laws generally prohibit the disclosure of personal health information. Some require notification to an employee if there has been an unauthorized disclosure.
  • Common law defamation or invasion of privacy claims may arise from identifying someone as having the virus when he or she does not.

Health Insurance Portability and Accountability Act (HIPAA)

The Health Insurance Portability and Accountability Act (HIPAA) restricts whether and under what circumstances patient “protected health information” (PHI) may be used and disclosed. Many of the state medical privacy laws and common law protections mentioned above also apply in this context. Accordingly, as covered entities prepare to safely treat persons who have or may have Ebola, patient privacy needs to be considered and included as part of organizations’ protocols and the management of their employees. Some key considerations include:

  • Remind workforce members that use and disclosure of PHI for treatment and health care operations purposes generally is permitted under HIPAA without the need for an authorization from the patient.
  • Implement a strategy for communicating with the media, public health agencies and guidelines for addressing disclosures made for public health and safety purposes. Employees should be made aware of these strategies and guidelines.
  • Handle carefully disclosures to spouses, family members and close friends, which can be made under some circumstances without an authorization. Revisit these issues with workforce members to help facilitate communications. Providers also should consider recent guidance the U.S. Department of Health & Human Services, Office for Civil Rights concerning these disclosures to same-sex spouses in light of the Supreme Court’s recent decision in United States v. Windsor.
  • Remind workforce members that they may access patients’ private information only as they have been authorized to do so to carry out their jobs. Snooping by hospital workers can be a significant problem for healthcare providers. Not only will it affect the patient’s privacy, but leaked information can cause unnecessary fear in the community and displace resources.
  • Remember that hospital workers that are patients of the hospital in which they work are patients and generally have the same privacy rights as other patients.
  • Under HIPAA, more stringent state laws need to be considered. (Uses and disclosures that are permissible under HIPAA may not be permissible under state law.) These distinctions already should be integrated into the covered entity’s policies and procedures.
  • Healthcare providers in different settings, such as universities where the Family Educational Rights and Privacy Act (FERPA) may apply, have additional considerations pertaining to students.

Jackson Lewis P.C. © 2014