The Ebola Virus Disease (EVD) outbreak is an international threat that has now reached the shores of the United States.
The Centers for Disease Control and Prevention (CDC) has described the most recent EVD outbreak as “the biggest and most complex” in history. The United Nations World Health Organization has labeled the EVD outbreak a “Public Health Emergency of International Concern.” EVD, like other infectious diseases, raises a slew of potential workplace legal issues, particularly for healthcare employers and employees.
The CDC’s Present Workplace Guidance
After the first EVD infection was detected in the U.S. in Sept. 2014, the CDC issued a poster for hospitals and other health care facilities that sets forth quick rules to follow for evaluating the risks posed by travelers who were in EVD affected areas. (See http://www.cdc.gov/vhf/ebola/pdf/ebola-algorithm.pdf.) In addition, the CDC has published a checklist for evaluating the likelihood of EVD infection. (See http://www.cdc.gov/vhf/ebola/pdf/checklist-patients-evaluated-us-evd.pdf.) We suggest that healthcare employers supplement their existing infectious disease policies and practices with the CDC’s newly published poster and checklist and closely monitor the CDC’s website for EVD updates.
Occupational Safety and Health
The Occupational Safety and Health Administration (OSHA) has yet to issue any specific guidance or directives regarding EVD. It has, however, taken the public position that EVD will likely be treated as subject to the General Duty Clause of the OSHA law. The General Duty Clause requires employers to keep the workplace free of recognized hazards that could cause injury or death to employees. Violation of the OSHA General Duty Clause can result in substantial financial penalties — particularly where (as here) there is substantial risk of fatality and available CDC guidance/standards for detecting and avoiding infection.
While it has not issued any specific guidance itself, OSHA has suggested that employers follow its existing standards and directives related to infectious diseases, including those standards applicable to fit testing and user seal check procedures and bloodborne pathogens. Likewise, healthcare employers are advised to ensure compliance with their existing policies/practices related to safe phlebotomy, washing and decontamination, prevention of needle sticks and sharps accidents, and proper disposal of wastes.
Healthcare employers should be sensitive to the fact that employees have the legally protected right to report unsafe infectious disease practices and/or to leave work if they have a reasonable basis to believe that they are in serious danger. Employees who do so are legally protected from retaliation.
New York State Department of Health (DOH)
On Sept. 16, 2014, the New York State Department of Health (DOH) issued its “Revised NYS/NYC Laboratory Guidelines for Handling Specimens from Patients with Suspected or Confirmed Ebola Virus Disease.” (See http://www.health.ny.gov/diseases/communicable/ebola/docs/lab_guidelines.pdf.) These guidelines supplement the CDC’s existing guidance respecting laboratory handling procedures related to EVD. Again, we suggest that healthcare employers update their infectious disease policies and protocols to reflect the DOH’s most recent guidance.
Americans with Disabilities Act
As a general matter, employers are prohibited from inquiring into an employee’s medical or health condition. However, there is an exception for those inquiries that are consistent with business necessity and related to the employee’s job. At this point, where the EVD outbreak in the U.S. is limited, such inquiries are probably not warranted in most instances. However, healthcare employers can — and should — as a matter of policy require their employees to immediately report any situation (including potential infection) which creates a danger of illness or injury. The Equal Employment Opportunity Commission has made clear that in certain circumstances an employer can require employees to report that they have an infectious disease. If an EVD infection report is made, it is advisable to seek the guidance of counsel and public health officials, as such a disclosure has multiple legal ramifications related to the employees’ privacy, and safety and health.
Gregory Reilly is a Partner and Head of Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. Greg is an experienced litigator and counselor who has been practicing employment and labor law for more than 20 years in a variety of fields including healthcare, hospitality, staffing and retail.