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Keeping Safe From Swine Flu While Complying With the Laws Is a Tall Order
BY THE HAIR ON MY CHINNY-CHIN-CHIN!
By David Smith (Atlanta Office) & Robin Shea (Winston-Salem Office)
According to the Centers for Disease Control and Prevention, in the event that the
H1N1 virus (formerly known as swine flu) becomes a pandemic, businesses and
other employers will play a key role in protecting employees’ health and safety, as
well as limiting the negative impact to the economy and society. Proper planning by
employers for this contingency is critical to successfully performing that role.
GUIDANCE FROM CDC AND OSHA
To assist businesses, industries, and other employers in this effort, both the CDC
and the Occupational Safety and Health Administration have developed planning
guidelines, including a checklist for large businesses, based upon traditional infection control and industrial hygiene practices. (The guidelines are also available on
OSHA’s website.) In addition, OSHA’s home page includes links to recent Fact
Sheets on “What Employers Can Do to Protect Workers from Pandemic Influenza” and “Respirators Versus Surgical Masks,” as well as at-a-glance QuickCards to be distributed to employees on “How To Protect Yourself in the Workplace during a Pandemic” and “Respiratory Protection” against the influenza
virus. All of these publications are available in Spanish as well as English.
STEPS EVERY EMPLOYER CAN TAKE
According to OSHA, employers and employees should use the planning guidelines
to help identify risk levels in workplace settings and appropriate control measures
that include good hygiene, cough etiquette, “social distancing,” the use of personal
protective equipment, and staying home from work when ill. “Social distancing”
means reducing the frequency, proximity, and duration of contact between people
(both employees and customers) to reduce the chances of spreading pandemic influenza. In the event of a pandemic, OSHA has suggested that the following basic
hygiene and social distancing precautions be implemented in every workplace:
• Encourage sick employees to stay home. Of course, any such absences
may qualify for leave under the Family and Medical Leave Act.
• Encourage your employees to wash their hands frequently with soap
and water or with hand sanitizer if there is no soap or water available.
Also, encourage your employees to avoid touching their noses, mouths,
and eyes.
• Encourage your employees to cover their coughs and sneezes with a
tissue, or to cough and sneeze into their upper sleeves if tissues are not
May 12, 2009
available. All employees should wash their hands or use a hand sanitizer after they cough, sneeze or
blow their noses.
• Employees should avoid close contact with their co-workers and customers (maintain a separation of
at least 6 feet). They should avoid shaking hands and always wash their hands after contact with others.
Even if employees wear gloves, they should wash their hands upon removal of the gloves in case their
hand(s) became contaminated during the removal process.
• Provide customers and the public with tissues and trash receptacles, and with a place to wash or disinfect their hands.
• Keep work surfaces, telephones, computer equipment and other frequently touched surfaces and office
equipment clean. Be sure that any cleaner used is safe and will not harm your employees or your office
equipment. Use only disinfectants registered by the U.S. Environmental Protection Agency, and follow
all directions and safety precautions indicated on the label.
• Discourage your employees from using other employees’ phones, desks, offices or other work tools
and equipment.
• Minimize situations where groups of people are crowded together, such as meetings.
• Use e-mail, phones and text messages to communicate with each other. When meetings are necessary,
avoid close contact by keeping a separation of at least 6 feet, where possible, and assure that there is
proper ventilation in the meeting room.
• Reconsider all situations that permit or require employees, customers, and visitors (including family
members) to enter the workplace. Workplaces that allow family visitors on site should consider restricting/eliminating that option during an influenza pandemic. Work sites with on-site day care should
consider in advance whether these facilities will remain open or will be closed, and the impact of such
decisions on employees and the business. Reducing or eliminating unnecessary social interactions can
be very effective in controlling the spread of infectious diseases.
• Promote healthy lifestyles, including good nutrition, exercise, and smoking cessation. Overall health
affects the body’s immune system and can affect the ability to fight off, or recover from, an infectious
disease.
SURGICAL MASKS versus FILTERING FACEPIECE RESPIRATORS
In areas where transmission of H1N1 has been confirmed and where crowded settings or close contact with
others cannot be avoided, the use of surgical masks or dust mask respirators should be considered. According to
the CDC, surgical masks protect the nose and mouth from other people’s coughs and also reduce the likelihood
that the wearer will cough on others. Surgical masks, however, are not designed to seal tightly against a user’s
face, and their ability to filter small particles varies significantly based upon the type of material used to make
the mask. For those reasons, surgical masks cannot be relied upon to protect workers fully against airborne infectious agents like the H1N1 virus. Filtering facepiece respirators (also referred to as “dust masks”) rated N95 or
higher should therefore be used by individuals who are unable to avoid close contact with infected individuals.
(OSHA defines “close contact” as being within six feet.) This would apply in the event of a pandemic, for example, to healthcare workers who cannot avoid contact with individuals who have influenza symptoms. Failure
of an employer to require the use of appropriate filtering facepiece respirators in those circumstances could result
in an OSHA citation for violation of the agency’s Respiratory Protection Standard, 29 C.F.R. §1910.134, which
requires employers to pay for and provide appropriate respirators when necessary to protect the health of their
employees.
May 12, 2009
When respirators are necessary to protect the health of employees, such as for certain healthcare workers
in a pandemic, OSHA requires that the respirators be certified by the National Institute for Occupational Safety
and Health. N95 filtering facepiece respirators are NIOSH-certified, but surgical masks are not. In those situations, the filtering facepiece respirators must be used in compliance with the specific requirements of the Respiratory Protection Standard, which include, among other requirements, fit testing, medical evaluation, and training
before the employee’s first use of the respirator in the workplace. Employers who have never before needed to
consider a respiratory protection program should note that these steps can take time, as can the selection of an
appropriate respirator. If employers wait until a pandemic occurs to get started, they may be unable to implement
an adequate respiratory protection program in a timely manner.
Even if employers allow their employees to wear surgical masks or filtering facepiece respirators on a voluntary
basis, they should ensure that such use does not in itself create a hazard, as might occur if the mask became dirty
or contaminated. Employers should also provide each “voluntary” user with certain basic information about using
respiratory protection, which is contained in Appendix D of the Respiratory Protection Standard.
FMLA, HIPAA, and ADA CONSIDERATIONS
FMLA. H1N1 or its symptoms, of course, would in most cases qualify as a “serious health condition” within the
meaning of the Family and Medical Leave Act. Thus, an employee would be entitled to FMLA leave for time off
because he had H1N1, or because he needed to care for a spouse, parent, or child who had H1N1. However, if
an abundantly cautious employer requires an employee who does not actually have the condition to stay out of
work, the time away from work probably cannot be charged against the employee’s 12-week FMLA entitlement
or under the employer’s attendance policy. Generally, the FMLA regulations do not allow employers to charge
employees with FMLA leave when the leave is required by the employer, and this principle would probably apply
in the case of H1N1 situations.
HIPAA. The privacy rules under the Health Insurance Portability and Accountability Act do not generally apply
to communications between an employer and an employee; however, they do apply to communications from the
employee’s health care provider to the employer. The new FMLA regulations specifically state that an employee
is responsible for providing any required HIPAA authorizations to the health care provider, and that an employer
may delay or deny FMLA leave if an employee’s health care provider cannot provide the necessary information
because the employee failed or refused to provide a HIPAA authorization.
ADA. Because H1N1 is an acute but short-term condition, it would probably not create a reasonable accommodation issue under the Americans with Disabilities Act (even with the more liberalized definition of “disability” that
applies with the ADA Amendments Act) unless the disease left the employee with a lingering condition that was
disabling. The more likely ADA issues to arise in this context would be confidentiality of medical information and
the ADA’s restrictions on medical examinations.
Confidentiality. Generally, the ADA requires that all employees’ medical information be maintained separately
from their personnel information and not be disclosed to others except on a strict “need-to-know” basis. This normally means the employee’s direct management (if necessary for reasonable accommodation purposes), Human
Resources or medical personnel, or the government when it is investigating compliance with the ADA. The ADA
does not authorize disclosure of medical information to an employee’s co-workers. These ADA requirements are
usually not difficult to comply with in ordinary circumstances; however, contagious diseases (such as H1N1)
May 12, 2009
often present problems because of co-worker concerns. An employer taking steps to prevent or contain H1N1
should do so while making every effort to avoid disclosing the identity of any individuals who have the disease,
have symptoms of the disease, or who were exposed to the disease.
Medical examinations. The ADA’s restrictions on medical examinations apply to all employees, whether “disabled” or not. Medical examinations may not be required unless “job-related and consistent with business necessity.” Arguably, a potentially devastating pandemic would provide sufficient justification for an employer to
require employees to receive medical examinations to determine whether they have contracted H1N1 and whether
they present a threat to the health of co-workers. Even better, voluntary medical examinations are always allowed
under the ADA, provided that the employer complies with the confidentiality and other requirements of the ADA.
Thus, allowing employees to voluntarily receive monitoring for H1N1 may adequately ensure safety while averting most ADA problems.
Protecting your employees from H1N1 while complying with CDC guidelines and the legal requirements of
OSHA, the FMLA, the HIPAA privacy rules, and the ADA is a real challenge. If you need assistance in this area,
please contact any member of the OSHA practice group, or the Constangy attorney of your choice.
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946.
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