As the Centers for Disease Control and Prevention (CDC) reports that “the risk of an Ebola outbreak in the United States is very low,” it is promulgating new protocols to more precisely address safety issues in the health care workplace. To minimize risks and ensure appropriate responsiveness, health care employers need to know what is required to protect their employees by the Occupational Safety and Health Act (OSHA), as well as what the rights of their employees are under the Americans with Disabilities Act (ADA) and the National Labor Relations Act (NLRA).
OSHA
The recent media frenzy and public concerns about Ebola serve as a strong reminder to health care employers about compliance with existing OSHA standards. The Occupational Safety and Health Administration has stated that Ebola is already regulated by one or more existing standards, but chiefly by what is known as the Bloodborne Pathogen (BBP) Standard. See 29 CFR 1910.1030. Health care employers are aware that the BBP Standard regulates worker exposure to Hepatitis B and to HIV. However, the Standard broadly defines “bloodborne pathogen” as “pathogenic microorganisms that are present in human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV) and human immunodeficiency virus (HIV).”
The BBP Standard, which applies when there is occupational exposure to blood or other potentially infectious materials (OPIM), requires a number of affirmative actions. OPIM includes virtually every bodily fluid. Occupational exposure means “reasonably anticipated skin, eye, mucous membrane or parenteral [piercing of skin or mucous membranes] contact with blood or [OPIM] that may result from the performance of an employee’s duties.” 29 CFR 1910.1030(b) (emphasis added). It is up to each employer to determine if any of its employees have a reasonable likelihood of contact with blood or OPIM. There is no exhaustive list of covered job titles, but among the obvious ones are health care workers, first responders, or anyone who may be expected to administer medical assistance.
When the standard applies, OSHA requires employers to perform and prepare an “exposure determination” evaluating and listing job classifications that have the potential for occupational exposure. The employer also must create a written Exposure Control Plan containing, at a minimum, the exposure determination, a schedule and method of implementation for various parts of the BBP Standard, and a procedure for evaluating the circumstances of any exposure incidents.
In general, the hierarchy of OSHA-preferred methods of dealing with hazards in the workplace is to (i) eliminate the hazard, when possible; (ii) minimize the hazard through engineering controls or changes in procedures; and (iii) use personal protective equipment (PPE). Those admonitions apply under the BBP Standard as well, but OSHA also requires the use of Universal Precautions, which essentially means that in any case of occupational exposure, human blood or bodily fluids are assumed to be infectious. As with virtually all OSHA standards, there are certain informational, training and recordkeeping requirements associated with the BBP Standard.
Notably, OSHA’s Web site refers to the CDC as “the authoritative source for information for health care workers who care for, treat, and otherwise interact with patients who are known to or are suspected of having EHF,” and links to a number of CDC publications such as: 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 health care workplaces); and Guidelines for Evaluation of US Patients Suspected of Having Ebola Virus Disease. As a result, health care employers should remain familiar with the guidance issued by the CDC, especially as that guidance evolves over the coming weeks.
Other OSHA standards also may apply to potential Ebola exposure, including the Respiratory Protection Standard, 29 CFR 1910.134; the PPE Standard, 29 CFR 1910.132; the Hazard Communication Standard, 29 CFR 1910.1200; and others. OSHA’s catch-all “General Duty Clause” is a broad statutory (not regulatory) requirement that every employer comply with OSHA regulations and “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” See 29 U.S.C. § 654.
Finally, OSHA protects workers who complain to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions or environmental problems. Employees cannot be retaliated against (e.g., transferred, have their hours reduced, be fired, or punished in any way) for exercising their rights under OSHA to express such concerns.
ADA
It is reasonable to expect that Ebola will be considered a “disability” under the ADA. The ADA limits an employer’s ability to make disability-related inquiries or to require medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: the employee’s ability to perform essential job functions will be impaired by a medical condition; or that the employee will pose a direct threat to others due to a medical condition. Likewise, under the ADA, an employer may not send an employee home because of a disability unless the employee poses a direct threat to the health and safety of others.
As of this writing, the U.S. Equal Employment Opportunity Commission (EEOC), which is charged with enforcement of the ADA, has not issued Ebola-specific guidance. However, in 2009, the EEOC issued guidance concerning the H1N1 influenza pandemic that (although there are significant differences between H1N1 and Ebola) may be instructive. The EEOC H1N1 technical assistance poses and answers questions like: How much information can be asked about an employee’s health? When can an employee be asked to stay home? Can temperatures be taken?
That guidance also incorporates CDC recommendations and sets forth ADA-compliant practices that clarify when it is permissible to obtain medical information and/or to send employees home for health reasons. Though each situation should be assessed on a case-by-case basis, the ADA and EEOC guidance are instructive to determine how to balance public health concerns with employees’ legal rights.
NLRA
The National Labor Relations Act protects the right of employees, whether or not they are members of a union, to engage in “concerted activity” for “mutual aid or protection.” 29 U.S.C. § 157. Although concerted activity generally requires two or more employees taking action together, a single employee may be deemed to have engaged in concerted activity if he or she is acting on the authority of other employees (e.g., in bringing safety concerns to the employer). The NLRA also separately protects the rights of unionized employees to cease working if they, in “good faith” are concerned over “abnormally dangerous conditions for work.” 29 U.S.C. § 143. For both union and non-union employees, a refusal to work because of safety concerns could be protected concerted activity under the NLRA.
The National Labor Relations Board (NLRB) has increasingly taken the position that employee commentary on social media can be one form of protected concerted activity. For example, a health care employee’s discussion about workplace safety on Facebook might be protected. However, employee discussions that could identify particular patients may violate patient privacy rights under federal and state laws. Accordingly, employers should consult with counsel about the permissible scope of policies that could be read as limiting employee discussions on social media and/or before disciplining employees for violating such rules.
With respect to unionized employees, the NLRA also requires an employer to “meet at reasonable times and confer in good faith with [the union concerning] terms and conditions of employment.” 29 U.S.C. § 158(d). An employer may be obligated to bargain with the union concerning safety issues and/or changes that are made in the workplace to address Ebola-related concerns.
Conclusion
Multiple laws, regulations, policies and advisory guidance from regulatory agencies apply to the health care environment dealing with Ebola. Health care employers need to continue to handle workplace events according to the most current CDC pronouncements, and within the well-established legal framework for protecting patients, employees and the public. Employee rights, including the right to present legitimate safety concerns, have not changed because of this outbreak. Health care employers should be reassured that, if they act reasonably in following these principles with sound legal guidance, they will be in compliance with the law.
