The fact that employers have a duty to protect workers (and others) against avian influenza and other infectious diseases that pose a foreseeable risk in the workplace is beyond dispute. What's less clear is what employers have to do to meet that duty. Let's examine that question now. There's also a model screening form that you can access in the Tools section of SafetyXChange.
Influenza Preparedness Guidelines
So far, the U.S. Government has published two sets of pandemic preparedness guidelines for employers:
- The November 2006 OSHA guidance on protecting workers mentioned in last week's installment; and
- A January 2006 business planning checklist from the Department of Health and Human Services (HHS).
Officially, the measures prescribed in these materials are only recommendations. But don't kid yourself. In the context of avian influenza, OSHA officials are likely to refer to these guidelines in determining an employer's duty under the general duty clause. Similarly, judges and juries in negligence cases might look to the guidelines to define what an employer must do to meet the duty of reasonable care. Result: The government's avian influenza recommendations should be treated as a de facto standard of what an employer is expected to do to comply with the law.
Let's look at what the OSHA guidance and HHS checklist require.
The Obligations of the OSHA Guidance
The OSHA guidance is broken down by industry. But while the specifics vary, the approach is the same. OSHA is essentially calling on employers to do four things to protect their workers against infection:
- Educate their workforce;
- Ensure that workers use proper hygiene;
- Ensure the use of proper protective equipment; and
- Implement medical precautions.
1. THE DUTY TO EDUCATE
General Education: First, you need to familiarize workers with the nature of the risk posed by avian influenza--what it is, how it can infect them and how to protect themselves. Among other things, workers should know the signs and symptoms of infection in animals and humans.
Prevention Measures: You need to acquaint your workers with personal hygiene and other measures they can take to guard against the risk of infection, including:
- Hand washing;
- "Cough etiquette";
- Social distancing;
- Proper use of PPE;
- Vaccination; and
- Precautions for workers planning to travel to affected areas.
Notification & Communication: The HHS checklist suggests that you must also keep your workers apprised of recent developments, both public and within your workplace. Employers must provide clear, timely and proactive communication to staff, including how your organization is handling the situation. This would involve posting information on your company website and/or starting an internal phone service that workers can call for information. Also post the location of hospitals, clinics, public health authorities and other health resources in your community. In addition, you need to establish and maintain communication with any of your workers who are absent due to infection.
2. THE DUTY TO ENSURE PROPER HYGIENE
The OSHA guidance stresses the importance of personal hygiene in warding off the risks of infection. Based on the OSHA and HHS materials, general measures employers can take to ensure proper hygiene at the workplace seem to include:
- Furnishing soap, anti-bacterial products and paper towels and keeping sinks and surfaces that people touch, e.g., door knobs, clean;
- Posting of signs, posters and notices reminding workers to wash their hands properly, use cough etiquette, keep social distances, etc.
- Adopting work practices that promote social distance, for example, using conference calls instead of face-to-face meetings; and
- Design measures such as keeping workstations as far apart as possible.
The OSHA guidance includes specific measures for workers exposed to influenza in animals or humans:
- Farm Workers/Animal Handlers: Frequent hand washing with soap and water for 15-20 seconds for workers in close contact with infected animals; and environmental cleanup of culling areas;
- Lab Workers: Change rooms and showers and adherence to Biosafety Level (BSL) 3+ conditions; and
- Food Handlers: Cooking of poultry products to at least 180oF.
3. THE DUTY TO ENSURE USE OF PPE
The OSHA guidance calls on employers to ensure that workers potentially exposed use appropriate PPE which may include:
- Protective gloves that are disinfected and disposable;
- Poultry workers and medical workers should use respirators (minimum: disposable particulate respirator, e.g., N95, N99 or N100);
- Protective gowns for medical workers;
- Protective clothing for poultry workers that can be disinfected or disposed, preferably coveralls plus an impermeable apron; and
- Eye protection for medical workers within three feet of infected patients.
4. THE DUTY TO IMPLEMENT MEDICAL PRECAUTIONS
The fourth set of obligations involves medical precautions such as:
- Screening workers and visitors entering the workplace for signs of influenza (See Model Form in Tools);
- Restricting travel to infected areas; and
- Protecting medical workers by isolating infected inpatients in airborne isolation rooms and outpatients in the home setting following the same principles used to prevent SARS infection; and
- Managing cases of infection at work, including telling those suspected of having influenza to go home immediately and monitoring which workers get infected, where they work, etc.
OSHA and the Department of Health and Human Services are also urging employers to create and implement a pandemic preparedness plan. In addition to protecting workers, the purpose of this plan is to preserve business continuity and minimize potential disruptions that a pandemic would cause. Next month, in Part 3 of this series, we will talk about how to create such a plan.
By Glenn Demby
Employers in Canada are required to implement essentially the same measures as their U.S. counterparts. Three provinces, British Columbia, Manitoba and Ontario, have published preparedness guidelines. Like the OSHA analog, the provincial preparedness guidelines call on employers to take immediate, proactive measures to prepare for a potential influenza pandemic.
In fact, regulators in Canada (especially BC) have actually gone farther than U.S. OSHA and the Department of Health and Human Services in the area of business preparedness planning. BC, MB and, to a somewhat lesser extent, Ontario, have published at least the outlines of a business preparedness plan. Thus, those of you north of the 49th parallel will be happy to know that next week's installment on preparedness plans will turn the tables and proceed on the basis of Canadian rather than U.S. sources.
5 Ways It Can Get Your Company into Legal Trouble
By Glenn Demby
The best reason to prepare for pandemic influenza is to protect the health of your workers and your business. The second best reason is to head off the kind of legal troubles a pandemic can lead to, including:
1. Liability for OSHA/OHS Violations: Failure to protect your workplace against infection hazards might violate the general duty clause of OSHA/OHS statutes.
2. Liability for Negligence: Third parties that become infected in your workplace or as a result of work-related contact with one of your infected workers can sue you for negligence.
3. Wage and Hour Violations: Absenteeism might force you to use workers for longer hours and precipitate wage and hour complaints under the U.S. Fair Labor Standards Act and provincial Employment Standards statutes.
4. Workers' Compensation Claims: Workers who contract avian influenza at work are likely to file workers' compensation claims.
5. Liability for Disability-Based Discrimination: A worker who becomes infected or shows symptoms of infection would likely be considered "disabled" under U.S. EEOC and Canadian human rights laws. Result: It may become unlawful to discipline or terminate the worker (unless you make reasonable efforts to accommodate his or her disability).