Breaking down Ebola concerns
Ebola continues to be a major public health concern throughout the United States. Skilled nursing facilities, assisted living facilities, long term acute care hospitals, home health agencies, hospices, clinics, and rehabilitation based facilities should develop an understanding of its legal obligations as healthcare providers and employers. On Friday, following a physician who arrived back in New York and tested positive, the government said it may change procedures for aid workers and instituted a quarantine.
According to the World Health Organization, the Ebola virus transmits from one individual to another through direct contact with blood or bodily fluids, or exposure to contaminated objects of symptomatic persons. The symptoms may include, but not limited to, fever, headache, joint/muscle aches, weakness, diarrhea, vomiting, stomach pain and abnormal bleeding with symptoms appearing 2-21 days after being exposed to the virus. While the fatality rate may vary, the WHO most recent indicated that the rate may be close to 70%.
As of October 8, 2014, a total of 8,399 cases and 4,033 deaths were reported from Guinea, Liberia, Nigeria, Senegal, Sierra Leone, Spain and the United States. The Centers for Disease Control and Prevention instituted a tracking program for travelers entering the United States from affected countries, provided guidance on managing patients, handling specimens, monitored exposures, assisted with case identification and provided contact tracing in Dallas, Texas.
Legal issues around Ebola include:
- Status and meaning of federal, state and local emergency declarations
- Disability or other status for employees exposed or infected with Ebola
- Nature of consent needed for use of experimental treatments
- Due process procedures to require testing, isolation or quarantine
- Emergency Medical Treatment & Labor Act issues for hospitals not properly equipped to treat Ebola patients
- Worker's compensation benefits for employees who contract Ebola while caring for a patient
- Respect for religious beliefs concerning treatment or burials
- Potential liability related to missteps in treatment or isolation of Ebola patients
Steps for healthcare providers
It is suspected that challenges with using personal protective equipment and changes in protocol contributed to the transfer of the virus to nurses. The CDC recommends appointing a site manager overseeing the donning and doffing of PPE. As such, it is recommended that providers appoint a site manager immediately and aim for preparation and education.
Next, providers should consider formulating teams of caregivers that will be primarily responsible for caring Ebola patients, provide time for those teams to practice donning and doffing PPE and performing job duties in the PPE. Most nurses and other healthcare workers are likely to report donning and doffing PPE can be cumbersome and difficult, so practice will be critical, especially when such healthcare workers are fatigued, leading to human error during the process. When practicing, apply safe colored substances on PPE to facilitate identification of inadvertent exposure as a learning method.
Many healthcare providers are running Ebola drills to prepare their staff. To maximize drill efforts, it is recommended that providers contact the local public health department to help with a “walk through” to determine whether the procedures and drills can demonstrate positive results. Furthermore, the Centers for Medicare & Medicaid Services proposed providers to take an “all-hazards” approach and establish an emergency preparedness protocol to increase safety, establish a coordinated response to disasters and create readiness for public health emergencies placed on the national agenda. Providers should be asking themselves if proper steps have been taken to meet such criteria.
Healthcare providers face unique employer-employee concerns. First, as an employer and a covered entity, providers need to be cognizant of HIPAA concerns. Specifically, providers must diligently maintain the privacy of patient health information and be prepared to audit its electronic medical records for inappropriate access to medical records of Ebola patients. Curiosity is not an acceptable reason for accessing patient information if he or she is not an authorized party.
The Americans with Disabilities Act provides protections to employees who may have physical, mental or emotional “disabilities,” but who are otherwise qualified to perform the essential functions of their jobs. A disability is an impairment which substantially limits one or more of the major life activities of an individual (e.g., self-care, working) which is chronic in nature. Ebola involves temporary infection, and assuming a successful recovery occurs, it is arguable that Ebola infection would not qualify as a “disability.”
However, if an employee develops a disability as a result of the infection and cannot return to his or her normal work duties because of such impairment, then the ADA may be a factor. If so, the employer must engage in an “interactive process” with the employee which involves a fact specific dialogue regarding the employee's ability to return to work, the timeframe, work restrictions, any reasonable accommodations which do not cause undue hardship to the employer or whether the employee's disability is a direct threat to the health or safety of the employee or other employees.
Another concern is related to the Occupational Safety and Health Administration. Under OSHA, the employer has a legal obligation to provide a safe workplace. One of the agency's enforcement mechanisms is the ability to issue citations with monetary penalties to employers. The “General Duty Clause” requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death. To determine the scope of the employer's obligation under the General Duty Clause, OSHA is empowered to utilize external nationally recognized consensus standards or other authoritative sources. With Ebola, OSHA would likely rely upon recommendations issued by CDC, the National Institute for Occupational Safety and Health or WHO. If OSHA determines that employees are reasonably likely to be “exposed” to Ebola, OSHA will require the employer to develop a plan with procedures to protect its employees. Regardless of the determination, the provider should expect that some employees may refuse to treat certain patients or even come to work. Retaliating (e.g. termination, demotion or any other forms of adverse employment actions) against employees who reasonably believe they are in imminent danger could violate OSHA.
The National Labor Relations Act also offers protection. Providers should exercise caution before retaliating against employees who criticize the provider-employer or management for failing to provide safe working conditions. Under the NLRA, private employers must be aware that this could be considered protected activity (and a concerted activity) by employees and also a reason to form a union.
Given the gravity of Ebola infections and being such a major public health issue, it has summoned legal opinions and implementation of new public policies throughout the country. As healthcare providers, this area of concern will be gradually more relevant in daily operations and having a financial impact as it evolves.Richard Y. Cheng is an attorney at Anderson Kill, based in its Dallas office. Prior to his legal career, Richard worked as a licensed occupational therapist in Dallas.