By Brad Hammock, Esq., Frank Alvarez, Esq. and Joseph Lazzarotti, Esq. at Jackson Lewis P.C.
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.
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).