Ebola: Workplace Liability Challenges. William Schurgin

Transcription

1 Ebola: Workplace Liability Challenges Brent I. Clark Mark A. Lies II James L. Curtis Meagan Newman William Schurgin

2 Objectives Discuss the nature and scope of the Ebola hazard and other viruses. Identify potential workplace liabilities. OSHA EEOC, ADA, FMLA Worker s Compensation Civil Liability Talk through real-world examples of employee and employer concerns. 2

3 Examples of Viruses Common cold Flu Polio Yellow fever Hepatitis HIV (AIDS) Ebola 3

4 There is a lot of anxiety among employees and employers. Key Facts from the World Health Organization Ebola virus disease (EVD), formerly known as Ebola haemorrhagic fever, is a severe, often fatal illness in humans. The virus is transmitted to people from wild animals and spreads in the human population through human-to-human transmission. The average EVD case fatality rate is around 50%. Case fatality rates have varied from 25% to 90% in past outbreaks. The first EVD outbreaks occurred in remote villages in Central Africa, near tropical rainforests, but the most recent outbreak in west Africa has involved major urban as well as rural areas. Community engagement is key to successfully controlling outbreaks. Good outbreak control relies on applying a package of interventions, namely case management, surveillance and contact tracing, a good laboratory service, safe burials and social mobilisation. Early supportive care with rehydration, symptomatic treatment improves survival. There is as yet no licensed treatment proven to neutralise the virus but a range of blood, immunological and drug therapies are under development. There are currently no licensed Ebola vaccines but 2 potential candidates are undergoing evaluation. 4

5 What does the CDC say about the risk? All cases of human illness or death from Ebola have occurred in Africa (with the exception of several laboratory contamination cases: one in England and two in Russia). One travel-associated case was diagnosed in the United States on September 30, On October 12, 2014, a healthcare worker at Texas Presbyterian Hospital who provided care for the index patient has tested positive for Ebola. CDC confirms that the healthcare worker is positive for Ebola. For more information, see Cases of Ebola Diagnosed in the United States. Healthcare providers caring for Ebola patients and the family and friends in close contact with Ebola patients are at the highest risk of getting sick because they may come in contact with the blood or body fluids of sick patients. People also can become sick with Ebola after coming in contact with infected wildlife. For example, in Africa, Ebola may spread as a result of handling bushmeat (wild animals hunted for food) and contact with infected bats. The virus also can be spread through contact with objects (like clothes, bedding, needles, syringes/sharps or medical equipment) that have been contaminated with the virus or with infected animals. (last updated 10/12/14) 5

6 What industries are affected by Ebola concerns? 6

7 All of them. Healthcare Hospitality Retail Real Estate Everyone with a workforce that travels for work or for leisure. Everyone with a workforce 7

8 OSHA Liability 8

9 OSHA Guidance Hazard Recognition Individuals with [Ebola Hemorrhagic Fever (EHF)] generally have symptoms typical of viral illnesses, including fever, fatigue, muscle pain, headache, and sore throat. The illness progression includes nausea, vomiting, diarrhea, and impaired organ function. In some cases, rash, internal and/or external bleeding, and death may occur. Only persons having close contact with someone who is sick with EHF or with their body fluids are at significant risk for exposure. This generally includes healthcare workers or family members caring for a sick individual. Airline flight crew, servicing and cargo employees; laboratory workers; mortuary and death care workers; individuals involved in border protection, customs, and quarantine operations; emergency responders; and other workers in other critical sectors may come into contact with sick individuals or their body fluids. 9

10 OSHA Liability Potential use of General Duty clause for a recognized hazard to employee safety and health. Bloodborne Pathogen Standard (29 CFR ) Respiratory Protection Standard (29 CFR ) Personal Protective Equipment (PPE) Standard (29 CFR ) Reliance upon CDC, NIOSH as authority Potential liability for citations and monetary penalties 10

11 OSHA Liability Conduct hazard assessment for potential exposures (e.g., occupational activities involving potential exposures e.g., travel, healthcare, transportation) Develop an action plan Hazard identification Hazard prevention procedures Employee training Medical monitoring surveillance Recordkeeping (OSHA 300 Log, etc.) 11

12 OSHA Interim General Guidance OSHA has issued recommendations for protecting workers whose work activities are conducted in an environment that is known or reasonably suspected to be contaminated with Ebola virus (e.g., due to contamination with blood or other potentially infectious material). These general guidelines are not intended to cover workers who have direct contact with individuals with EHF. 12

13 OSHA Interim General Guidance (Part 1) Employers should follow recognized and generally accepted good infection control practices, and must meet applicable requirements in the PPE standard and the Respiratory Protection. Use proper personal protective equipment (PPE) and good hand hygiene protocols to avoid exposure to infected blood and body fluids, contaminated objects, or other contaminated environmental surfaces. Wear gloves, wash hands with soap and water after removing gloves, and discard used gloves in properly labeled waste containers. Workers who may be splashed, sprayed, or spattered with blood or body fluids from environmental surfaces where Ebola virus contamination is possible must wear face and eye protection, such as a full-face shield or surgical masks with goggles. Aprons or other fluid-resistant protective clothing must also be worn in these situations to prevent the worker's clothes from being soiled with infectious material. 13

14 OSHA Interim General Guidance (Part 2) Workers tasked with cleaning surfaces that may be contaminated with Ebola virus must be protected from exposure. Employers are responsible for ensuring that workers are protected from exposure to Ebola and that workers are not exposed to harmful levels of chemicals used for cleaning and disinfection. OSHA s Cleaning and Decontamination of Ebola on Surfaces Fact Sheet provides guidance on protecting workers in non-healthcare/non-laboratory settings from exposure to Ebola and cleaning and disinfection chemicals. CDC also offers specific guidance for workers cleaning and disinfecting surfaces that have been in contact with blood or body fluids from a traveler known to have or suspected of having EHF. Employers must train workers about the sources of Ebola exposure and appropriate precautions. Employers must train workers required to use personal protective equipment on what equipment is necessary, when and how they must use it, and how to dispose of the equipment. In addition where workers are exposed to blood or other potentially infectious materials, employers must provide the training required by the Bloodborne Pathogens standard, including information about how to recognize tasks that may involve exposure and the methods to reduce exposure, including engineering controls, work practices, and personal protective equipment. 14

15 CDC: Interim Guidance about Ebola Infection for Airline Crews, Cleaning Personnel, and Cargo Personnel A U.S. Department of Transportation rule permits airlines to deny boarding to air travelers with serious contagious diseases that could spread during flight, including travelers with possible Ebola symptoms. This rule applies to all flights of U.S. airlines, and to direct flights (no change of planes) to or from the United States by foreign airlines. Cabin crew should follow routine infection control precautions for onboard sick travelers. If in-flight cleaning is needed, cabin crew should follow routine airline procedures using personal protective equipment available in the Universal Precautions Kit. If a traveler is confirmed to have had infectious Ebola on a flight, CDC will conduct an investigation to assess risk and inform passengers and crew of possible exposure. Hand hygiene and other routine infection control measures should be followed. Treat all body fluids as though they are infectious. (Updated 10/15/14) 15

16 CDC Guidance for Healthcare Settings The U.S. Centers for Disease Control and Prevention provides information for healthcare workers who care for, treat, and otherwise interact with patients who are known to or are suspected of having EHF. CDC provides guidance and recommendations, including the following publication: Infection Prevention and Control Recommendations for Hospitalized Patients with Known or Suspected Ebola Hemorrhagic Fever in US Hospitals Interim Guidance for Environmental Infection Control in Hospitals for Ebola (Applicable to housekeeping staff in healthcare workplaces) 16

17 California OSHA California Division of Occupational Safety and Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard is aimed at preventing worker illness from infectious diseases that can be transmitted by inhaling air that contains viruses (including Ebola), bacteria or other disease-causing organisms. Only mandatory for certain healthcare employers in California, yet may provide useful guidance for protecting other workers exposed to Ebola virus. Ebola guidelines issued on October 15,

18 OSHA Whistleblower The OSH Act prohibits employers from discriminating against their employees for exercising their rights under the OSH Act. These rights include filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, and raising a safety or health complaint with the employer. 18

19 Employment Issues 19

20 FMLA 50 or more employees/eligiblity Requirements 12 weeks unpaid leave in 12 month period (if qualified) Serious health condition of employee or immediate family Ebola is a serious health condition under FMLA Job reinstatement rights Quarantine issues if infected State law may provide additional leave benefits 20

21 ADA Qualified employee with disability protected from discrimination EEOC is likely to consider Ebola a covered ADA Disability Regarded as issues arise with respect to employees traveling from West Africa or exposed to Ebola Once an employee recovers there can be having a record issues Reasonable Accommodations Fitness For Duty/Direct Threat Forced Leave 21

22 Other Federal Employment Laws Title VII National Origin Discrimination NLRA Protected Concerted Activity -Applies to Union and Non-Union Employers -Broad Application by NLRB -Section 502 Union Represented Employers - Labor Contract and Bargaining obligations HIPAA/Privacy 22

23 Importance of Public Health Guidelines In determining appropriate employer actions, CDC and other public health guidelines are a key resource. While Ebola is clearly not at a pandemic stage, the 2009 EEOC guidance on pandemic preparedness may be instructive. Given the developing nature of this issue, employers should consult appropriate medical, legal and public health experts if confronted by an Ebola concern raising employment law issues. 23

24 Worker s Compensation 24

25 Worker s Compensation Worker s compensation if arising out of and in course of employment Reasonable and necessary medical care Temporary total disability benefits Permanent disability, if any Engage competent medical professional (infectious disease) to advise 25

26 Disability Benefits If provided by contract Review limits of coverage Competent medical assistance to administer program 26

27 Civil Liability 27

28 Premises Liability Landowner/employer duty to protect visitors to premises from hazards which are not open and obvious Potential health hazard in building, e.g., ventilation system, washroom facilities, cafeteria, etc. May require notice to tenants, visitors of known infection events Review leases and related agreements (e.g., sanitation, building maintenance) Potential liability would be very fact specific. 28

29 Negligence Liability may attach if third party contracts Ebola due to the Company s negligence Potential for both compensatory and punitive damages Work comp v. civil liability Issue is whether company has a duty to the third party that has been breached Working with public health officials and following CDC is critical Very fact specific. Company should be working closely with legal counsel 29

30 Common Questions 30

31 HYPOTHETICAL #1 Patty in the finance department lived in the same house with a person who has been diagnosed with Ebola. She is asymptomatic, but still in the incubation period and being monitored by public health authorities. What Do you Do? 31

32 HYPOTHETICAL #2 You receive a call through the company s anonymous whistleblower hotline claiming that someone in the accounting department is contagious with Ebola or another potentially fatal virus. What do you do? 32

33 HYPOTHETICAL #3 Joe, a company salesman, was traveling on a commercial airline flight with another passenger that is later diagnosed with Ebola. Joe is scheduled to make several sales calls over the next week which will require him to travel by both plane and train, stay in hotels and come into contact with numerous clients. Joe s salary is largely bonus based and these sales calls are critical to a successful financial year for him and he refuses to voluntarily delay the trip. What do you do? 33

34 HYPOTHETICAL #4 Steve in the mailroom begins wearing a surgical mask and surgical gloves when making rounds at work (including areas where clients are present) and becomes increasingly hostile and rude with any employee who comes within three feet of him, saying he is afraid of contracting Ebola. Other mailroom employees begin complaining that Steve is creeping them out and refusing to work with Steve. What do you do? 34

35 HYPOTHETICAL #5 A patient who is a native of a West African country presents at the hospital with a 102 degree fever. The patient reports that he has not been to Africa for years. The admitting nurse refuses to treat claiming that she has not been properly trained in the current CDC guidelines. What do you do? 35

36 Thank you. 36