The legal view


The legal view

In our second feature on the risk management implications of Ebola virus disease, HRMR speaks to Jeffrey Tanenbaum, a member of law firm Nixon Peabody’s labor & employment practice, about the legal issues raised by the threat of the disease.

To minimize liability issues surrounding the possible treatment of Ebola patients in US hospitals, it is vitally important to ensure compliance with all applicable laws, regulations and public emergency declarations (see below).

It is also prudent to comply with all non-mandatory guidelines issued by applicable agencies, says Jeffrey Tanenbaum, a partner in law firm Nixon Peabody’s labor & employment practice who chairs the firm’s occupational safety & health (OSHA) practice.

In relation to compliance to non-mandatory guidelines, he adds that it is possible that reasonable variation for a particular facility may be appropriate.

“However, any variation would increase the potential for liability, and may increase the potential for a health risk,” he adds, but he notes that “sometimes the non-mandatory guidelines can go too far and compliance with them can create other potential liability issues and can create their own set of compliance problems”.

Tanenbaum recommends that healthcare facilities should consult with legal counsel if they have any questions as to whether compliance with a non-mandatory guideline is appropriate, and if not, what alternative steps should be taken.

He says that hospitals and other healthcare providers should think of Ebola virus disease (EVD) preparation in three phases: (1) planning and preparation; (2) response to an outbreak; and (3) debriefing and studying lessons learned so that improvements can be made for the next outbreak.

“Healthcare facilities can take their communicable illness response plans (CIRPs) and make sure that they are updated to follow the latest requirements and guidelines from the applicable OSHA agency, the Centers for Disease Control (CDC) and applicable public health authorities,” he says.

“This will be something of a moving target as the guidelines from these various governmental agencies will undoubtedly be changing in the next weeks and perhaps months, but it is important that CIRPs be regularly updated to stay compliant with such changes.”

Sound planning

Tanenbaum notes that hospitals typically already have good CIRPs in place and they can build upon this by adding the additional material from the latest guidelines. An excellent pre-existing CIRP will already cover more than 90 percent of what a hospital needs to do. Other healthcare providers may need to develop a good CIRP if they do not already have one.

“We encourage our clients to develop effective, efficient and robust CIRPs that take EVD into account wherever possible, rather than developing specific programs for EVD, as the response to each category of communicable illness (airborne, blood-borne, etc) will be very similar and it is much easier for employees to follow well-known universal precautions than to learn and apply specific plans for each type of outbreak,” he says.

Education and minimizing fear

In addition, there are significant practical steps that healthcare providers can take to minimize risk. The first of these is, he says, education.

“Nothing is more dangerous than fear here,” says Tanenbaum. “To date in the US we have a pandemic of Ebola fear but not an Ebola pandemic.

“Fear will cause employees and staff to refuse to work and patients to either refuse to seek needed or elective healthcare and/or to overwhelm emergency rooms when they are not really seriously ill.

“Fear will also cause screening processes to fail because some potential patients are less likely to be truthful. For education to work, it must be easy to understand, transparent and credible. Good education means advanced planning for employee training, and notices to patients and potential patients, as well as planning for media statements and media enquiries.”

Supply chain issues

He adds that it is essential to take steps in advance to secure your supply chain for needed supplies. This need has become greatly exacerbated by some government guidelines calling for personal protective equipment (PPE) that does not appear to be supported by scientific evidence. This leads to a shortage of supplies for compliance, and for other circumstances where such PPE may really be needed.

HR issues

Tanenbaum emphasizes that it is also very important to prepare for significant HR issues, particularly if some employees and other staff refuse to work.

An employee who refuses to perform duties out of reasonable concern for his or her health or the health of others has protection under OSHA and state OSHA programs. However, the refusal must be reasonable, he notes. It is not likely to be reasonable if the hospital has provided all appropriate PPE, training and appropriate communicable illness protocols.

“In some cases an employee who refuses to perform duties may be terminated or may be suspended. This would also involve issues under any applicable collective bargaining agreement. The legal response to non-employee staff who refuse to provide treatment will depend on the terms of their contracts,” he says.

“In all cases, the legal response should also take into account real practical concerns. A facility needs to have its employees and staff working. However, the potential for exposure will create fear. It can also be very uncomfortable to wear required PPE, to the extent employees or staff may refuse to treat EVD or suspect EVD patients for this reason.

“The post-care impact on employees and staff, such as quarantine, can also be personally and financially significant.”

Potential exposures

Employees and other staff may need to be quarantined after exposure to an EVD patient and perhaps even after exposure to a suspect EVD patient until it is determined whether that patient has Ebola. This is a major issue for employees and staff, as well as for the facility itself.

Tanenbaum also notes that the latest guidelines call for some rigorous measures, including providing private rooms to suspect EVD patients, and that this will require additional advanced planning that can affect other patients.

If Ebola were found to have been transmitted within a facility, to an employee at work, the healthcare provider may face OSHA citations. In most cases any employee who is exposed would have an exclusive remedy through workers’ compensation. There are a few exceptions that vary by state, but not many, he says.

“As to liability issues, if another patient contracts Ebola, there is the potential for litigation,” he adds.

Occupational safety and health compliance always involves a continual process of improvement. “Common areas where improvements can be made include employee compliance, real-time updating of plans as guidance from regulatory agencies changes, supply chain management, clarification of written plans, additional training, drills and practice, communications, and follow-up debriefs.”

Jeffrey Tanenbaum, Ebola, Nixon Peabody, US