Q. Does OSHA plan to enforce standards specifically with respect to Ebola?
A. Yes, OSHA is carefully monitoring the Ebola situation, especially with respect to its impact on employees in the healthcare industry, including hospitals, nursing facilities and psychiatric facilities. It has created a centralized website for employers to familiarize themselves with the disease, including its transmission and what can be done to protect employees.
Q. What are my obligations under the OSH Act to protect my employees from Ebola?
A. OSHA has endorsed the guidelines issued by the Centers for Disease Control as procedures for dealing with the threat from Ebola. Additionally, OSHA has cited to several existing standards that can be applied where the employer recognizes the risk of Ebola. First, the Bloodborne Pathogens standard (1910.1030) provides guidance for employees at risk of coming into contact with blood or other potentially infectious materials. Employers who have such employees must establish a written Exposure Control Plan designed to minimize employee exposure to the virus that meets the requirements of the standard, including identifying at-risk employees and job functions.
OSHA has also cited to various other standards that may be applicable in the Ebola context for healthcare workers. For example, if employees are potentially exposed to bio-aerosols containing the Ebola virus, OSHA also considers the Respiratory Protection standard (1910.134). For employees who may be part of the disinfectant process, the Personal Protective Equipment standard (1910.132) and the Hazard Communication standard (1910.1200) have also been noted by OSHA.
Finally, even for employees who are not specifically subject to the standards, the General Duty Clause requires employers to provide a safe work environment against known threats, which now include Ebola. Violations of these standards for dealing with the Ebola virus or of the General Duty Clause could result in fines of up to $70,000 for willful violations and up to $7,000 for each non-willful violation.
Q. What type of protective equipment should employees who may potentially be exposed to the Ebola virus use?
A. OSHA has issued specific guidance related to cleaning and decontaminating the Ebola virus, including a description of appropriate protective equipment here.
Q. An employee is suffering from Ebola-like symptoms. Do I have to include this employee in my Form 300 or complete a Form 301?
A. Yes, but only if it appears the employee contracted the disease while at work.
Q. Is there any other guidance on further steps that may be taken to protect my employees?
A. Yes. California’s state OSHA has issued its own guidance with more specific requirements aimed at preventing the infection and spread of Ebola. Specifically, the new guidance recommends that employers:
- Ensure that workers at risk of exposure to Ebola wear gloves, impermeable body coverings, face shields or other eye and face protection, and appropriate respiratory protection. All personal protective equipment (PPE) must be adequate to prevent the passage of bodily fluids to the employee's clothing and skin. National Institute for Occupational Safety and Health (NIOSH) approved respirators must be used where infectious aerosols are likely to be present.
- Train employees in the use of all applicable protective equipment, including respirators. Employees must be clearly instructed on how to safely put on and take off equipment.
- Give employees opportunities to practice with the respirators and other equipment they will use.
- Provide dedicated, separate areas for the donning and removing of protective gear.
- Use either a buddy system or other means of assisting employees in donning and removing PPE. Employees who assist in removing contaminated equipment must also use PPE.
- Provide additional protective gear, such as double gloves and disposable shoe and leg coverings, in environments where copious amounts of blood, vomit, feces or other bodily fluids are present.
- Ensure that workers conducting aerosol-generating procedures such as intubation or bronchoscopy perform the procedures in an airborne infection isolation room, if feasible, or at least in a private room with the door closed. Employees exposed to these procedures must use NIOSH-approved respirators.
Q. Can I terminate an employee who makes a report of an unsafe working environment and then refuses to work based upon the belief that the workplace is unsafe?
A. It depends. An employee's duty to report to work on time and ready to perform his or her job duties is not excused based on a generalized fear of safety solely because an Ebola patient is being treated by the employer. If the employee refuses to report to work, then the standard attendance policies that typically include progressive discipline should be followed. The same would remain true even if the employee has reported a perceived OSHA claim through internal or external complaint procedure. However, if the employee has a specific fear based upon articulable facts, employers should exercise caution in termination. See also discussion on Employee Discipline.
The Americans with Disabilities Act (ADA) prohibits employment discrimination against individuals with disabilities, and employers could be exposed to claims of disability discrimination if they require employees to take leave because of a perceived risk of having contracted Ebola, i.e., limited contact with infected individuals, or travel to West Africa. Under the ADA, an employee can allege discrimination under a theory of having been “regarded as” disabled, even if he or she doesn’t actually have a disability.
Requiring “high-risk” employees (i.e., employees who have traveled to West Africa or had limited contact with infected individuals) to undergo medical examinations or periodically monitor their body temperature may also subject an employer to claims of disability discrimination. Federal guidance considers measuring employees’ body temperatures as a “medical examination.”
Under the ADA, employer may only conduct a medical examination if it is job-related and consistent with business necessity. Preventing Ebola from spreading in the workplace, especially in the healthcare setting, is likely to be job-related and consistent with business necessity, but the legal risk for the employer centers on deciding which employees are “high-risk” and should be tested. For example, it may not be “consistent with business necessity” to require all employees who have recently visited West Africa to undergo medical exams.
To reduce the risk of ADA liability, employers in the healthcare setting could consider adopting a different mechanism for Ebola detection. Instead of selecting and requiring certain employees to undergo medical examinations, employers could instead require all employees to have a body temperature of below 100 degrees Fahrenheit prior to starting their shifts. In this case, the employer could argue that this rule is a “qualification standard,” not a “medical examination,” because it is required of all employees. Under the ADA, “qualification standards” must also be job-related and consistent with business necessity. Federal courts, however, have held that for unlawful “qualification standards,” only employees with actual disabilities may file a lawsuit; for unlawful “medical examinations,” any employee subject to the medical exam can file suit.
On a practical level, employees are more likely to perceive an across-the-board job qualification (below 100 degrees in body temperature) to be fair, as oppose to the employer discretionally choosing which employees are “high-risk” and must be monitored. On the other hand, requiring all employees to measure their body temperature every day may be overly time consuming and expensive.
In any event, healthcare employers must take care to avoid stereotyping based upon employee’s actual or perceived medical condition and focus on balancing the need to deliver high quality patient care with the rights of employees to be treated fairly under the law.