United States: FAQs On Occupational Safety And Health Administration

Last Updated: November 2 2014
Article by Brian A. Pierce

Q.  Does OSHA plan to enforce standards specifically with respect to Ebola?

A.  Yes, OSHA is carefully monitoring the Ebola virus, 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 Center 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 mistake.

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, 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.

For further information visit Waller

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.