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OSHA Law Blog

Confronting Ebola Concerns in the Workplace

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 at http://www.cdc.gov/vhf/ebola/index.html.

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.

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Jackson Lewis attorneys are available to assist you with these and other issues. For more information, please contact Brad Hammock at HammockB@jacksonlewis.com, Frank Alvarez at AlvarezF@jacksonlewis.com, Joseph Lazzarotti at LazzaroJ@jacksonlewis.com, or the Jackson Lewis attorney with whom you usually work.

 

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Operator and Contractor not Liable for Arsonist’s Action, Judge Rules. Neither a mine operator nor its contractor was liable for a fire that had been set intentionally deep inside an Idaho underground silver mine, a judge has ruled.

Appeals Panel Upholds ALJ’s Ruling that Worker was an Employee. The U.S. Court of Appeals for the Sixth Circuit has rejected a roofing contractor’s claim it should not have been cited by OSHA because the alleged offenses were performed by an independent contractor. Absolute Roofing & Construction, Inc. v. Secretary of Labor, No. 13-4364 (6th Cir. Sept. 9, 2014). The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

OSHA Extends Operator Certification Requirement for Cranes in Construction

This week, OSHA issued a final rule delaying implementation of operator certification pursuant to 29 C.F.R. §1926.1427 for a three year period to November 10, 2017.  Section 1926.1427 addresses the training and certification requirements for crane operators in construction and was set to become effective on November 10, 2014.

In February, OSHA proposed the three year extension after significant concerns were raised by the industry regarding whether certification by itself is an accurate measure of an employee’s competence to operate a crane and, in addition, should certification be issued based on both the capacity and type of crane.  The three year extension will allow OSHA time to clarify these issues, as well as extending the time employers must be in compliance. A copy of OSHA’s news release and the final rule can be found here.

Changes to OSHA law are coming to California

California Governor Jerry Brown signed A.B. 1634  into law on September 20, 2014, a new bill that significantly changes an employer’s obligations to abate alleged workplace safety and health hazards in California and reduces the ability of the California Division of Occupational Safety and Health (DOSH) to make modifications to civil penalties. 

When the new law comes into effect on January 1, 2015, DOSH will now be prohibited, in the case of serious violations, from granting proposed modifications to civil penalties for abatement or credit for abatement unless the employer has done one of the following three things: (1) abated the violation at the time of the initial inspection; (2) abated the violation at the time of re-inspection (prior to a citation being issued); or (3) has submitted a signed statement under penalty of perjury with supporting evidence to show the violation has been abated (this must be received by DOSH within 10 working days of the date fixed for abatement).  While the new bill provides that “[t]he submission of a signed abatement statement shall not be considered as evidence of a violation during an appeal,” it seems difficult to comprehend how the ability to abate and the method of abatement will not be considered as evidence that the employer violated the Act, especially in General Duty Clause cases.  

A.B. 1634 notes that if DOSH fails to receive evidence of abatement or the signed statement within 10 working days after the end of the abatement period, it will notify the employer that additional civil money penalty for failure to abate will be assessed retroactive to the end of the abatement period unless the employer can provide sufficient evidence that the violation was abated prior to that date.  DOSH will also conduct a re-inspection of serious violations within 45 days following the end of the abatement period whenever it does not have evidence of abatement.

In addition, in the case of serious, repeat serious, or willful violations, an appeal to the Occupational Safety and Health Appeals Board (OSHAB) by the employer will no longer stay or suspend the requirement to abate the hazards unless the employer can demonstrate by a preponderance of the evidence that a stay or suspension of the abatement will not adversely affect the health and safety of employees. The employer must request a stay or suspension of abatement by filing a written, verified petition with supporting declarations with the OSHAB within 10 days after the issuance of the order or decision.

To read more about this go to: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1634&search_keywords .

OSHA’s Top Ten Citations

OSHA recently announced the preliminary Top 10 most frequently cited violations for fiscal year 2014. The Top 10 list remains virtually unchanged from years prior.  For FY 2015, employers should  spend some extra time reviewing their workplace safety programs under the Top 10 most frequently cited standards to ensure their compliance with the OSHA requirements.  A focus on the employer’s obligations under these standards will go a long way in reducing its chances of receiving OSHA citations in the future.

 The Top 10 cited violations for FY 2014, including the number of citations issued are:

 (1)   Fall protection (§ 1926.501) – 6,143

 (2)   Hazard Communication (§ 1910.1200) – 5,161

 (3)   Scaffolding (§ 1926.451) – 4,029

 (4)   Respiratory Protection (§ 1910.134) – 3,223

 (5)   Lockout/Tagout (§ 1910.147) – 2,704

 (6)   Powered Industrial Trucks (§ 1910.178) – 2,662

 (7)   Electrical – Wiring Methods (§ 1910.305) – 2,490

 (8)   Ladders (§ 1926.1053) – 2,448

 (9)   Machine Guarding (§ 1910.212) – 2,200

 (10)     Electrical – General Requirements (§ 1910.303) – 2,056

 

 

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Committee Approves Changes to OSHA’s Whistleblower Statute. OSHA’s Whistleblower Protection Advisory Committee wants to improve safeguards for employees who experience retaliation after making workplace safety and health complaints, but most of the changes it recommends will take congressional action.

Judge Throws Out MSHA Citation for Lack of Jurisdiction. A mine operator’s decision to challenge an MSHA citation and proposed $121 fine was rewarded when a judge threw out the violation for lack of jurisdiction.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

FAA and OSHA MOU Effective August 26, 2014

In August, 2013 we posted an article “OSHA in the Sky – FAA Policy on Application of OSHA Standards for Aircabin Crewmembers” – reporting on the FAA’s August 27, 2013 final policy statement outlining three areas where OSHA could regulate for cabin crewmembers  while on board an aircraft in operation. Flightcrew members (i.e. pilots and co-pilots) do not fall within the definition of “cabin crewmembers” and, therefore, are not covered by the new regulations. The three standards which OSHA began enforcing are: hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.30), and hazard communication standard (29 C.F.R. § 1910.1200). Although the policy took effect on September 26, 2013, OSHA only began enforcing the standards this year on March 26, 2014.

The recent Memorandum of Understanding which became effective on August 26, 2014, spells out the procedural process whereby the FAA and OSHA will enforce those three standards. Complaints or referrals received by OSHA pertaining to noise, bloodborne pathogens and/or hazard communication will be subject to OSHA’s phone/fax method. Under this “inspection” method, OSHA will respond to a complaint or referral by telephoning the employer, describing the alleged hazard, and follow up with a fax or letter. The employer then will have 5 days to respond to OSHA in writing, identifying any hazards it has found and the corrective action taken or planned to fix the hazard(s). If OSHA is satisfied with the employer’s response, an onsite inspection is unlikely and the only action will be to send a copy of the employer’s response to the employee who filed the original complaint. If the employee is not satisfied with the employer’s response, he/she may request an onsite inspection. In the event that an inspection would be required while an aircraft is in operation, OSHA and FAA will coordinate the process.

OSHA and the FAA will meet semi-annually for the next two years to monitor the implementation of the policy statement. There are no plans to expand the scope of OSHA’s jurisdiction over airline aircabin crewmembers beyond these three standards, and the previously approved regulations on recordkeeping and access to employee exposure and medical records.  However, should a decision be made in the future to add more standards, OSHA and the FAA will go through a process, including notifications in the Federal Register, similar to the process they went through to implement the hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.30), and the hazard communication standard (29 C.F.R. § 1910.1200).

To read more about this, go to:

http://www.faa.gov/about/initiatives/ashp/media/OSH-standards-aircraft-cabin-crewmembers.pdf

http://www.faa.gov/about/initiatives/ashp/media/FAA_OSHA_MOU_2014.pdf

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

OSHA, NIOSH Issue Guidance on Temporary Worker Safety. OSHA and NIOSH have teamed up to produce a guidance document featuring safety and health best practices for employers and temporary staffing agencies which supply labor to them.

Split Commission Holds MSHA POV Rule Valid. The Federal Mine Safety and Health Review Commission has held that MSHA’s pattern of violations (POV) rule is “facially valid,” but that opinion was not rendered unanimously.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

Final Rule Issued for OSHA Recordkeeping Requirements

In a press release issued September 11, 2014, OSHA announced the final rule for Occupational Injury and Illness Recording and Reporting Requirements.  For Federal Plan States, the regulation will come into effect on January 1, 2015; State Plan States will announce their dates independently but are encouraged to meet the same deadline.  This regulation brings some major new changes for employers.  Dr. Michaels cited the most recent Bureau of Labor Statistics (BLS) report that 4,405 workers were killed on the job in 2013 to emphasize the importance of this new rule.

Establishments in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records.  Under the new rule, there will be a shift in the number of industries which are partially exempt from keeping these records.  Previous regulations used the Standard Industrial Classification (SIC) system to categorize industries.  The new rule now relies on the North American Industry Classification Systems (NAICS), along with injury and illness data from BLS from 2007 through 2009 to categorize the industry as low-hazard and exempt employers from OSHA recordkeeping requirements.  As a result of this update, employers in several new industries are now required to keep OSHA injury and illness records.  A list of these new industries can be found at https://www.osha.gov/recordkeeping2014/reporting_industries.html. The new rule maintains the exemption for any employer with 10 or fewer employees from the requirement to routinely keep records of worker injuries and illnesses. 

The rule expands the list of severe injuries which all OSHA-covered industries must report to OSHA, regardless of size or partial exemption status.  The current rule stipulates that when there is a fatality or three or more hospitalizations, the employer must inform OSHA within 8 hours of the occurrence.  Under the new rule, a fatality (within 30 days of the work-related incident) must still be reported within 8 hours of the death.  However, employers will now have a 24 hour window in which to report to OSHA all work-related inpatient hospitalizations that require care and treatment of a single employee, all amputations, and all losses of an eye which occur within 24 hours of the incident. 

The available methods of reporting by the employer have also been expanded.  In addition to calling OSHA’s confidential number (1-800-321-OSHA), or calling the local OSHA Area Office, employers will be able to go to the web portal which OSHA is developing, and make a report electronically. 

OSHA has stated that not all reported incidents will lead to an inspection.  OSHA noted, however, that hospitalization and partial body loss are significant events that indicate serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.  OSHA said in its press teleconference that it sees a report as opening a dialog with the employer and that its decisions regarding whether an investigation will be opened will be case-specific.  OSHA is most interested in knowing what caused the injury, what the employer intends to do as a result of the incident, and putting the employer on notice – all of which it expects will make an employer more likely to take the necessary steps to rectify the situation.  Based on OSHA’s conversation(s) with an employer, OSHA indicated that it may decide to take no further action, roll the employer straight into a consultation program, or conduct an inspection. 

Significantly and most troubling, OSHA also stated during its press teleconference today that it will make an employer’s report of all fatalities, hospitalizations, amputations, or eye losses publicly available on the OSHA website.  OSHA stated that it believes that public disclosure will incentivize employers to ensure a safe workplace for their employees. 

To learn more about this, you may view the new rule at https://www.osha.gov/recordkeeping2014/NAICSReporting.pdf .

 

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

‘Major Issues’ Affect Cal/OSHA’s Mission Capability, Federal OSHA Says. The California Division of Occupational Safety and Health, better known as Cal/OSHA, is so understaffed the agency is challenged to fulfill its mission, federal OSHA said in its annual monitoring and evaluation report of the state agency.

Judge Denies MSHA’s Motion for Temporary Economic Reinstatement in Discrimination Case. A mine employee sought temporary economic reinstatement after filing a discrimination claim over alleged safety issues, but a judge has ruled physical reinstatement is the only available remedy.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.