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Clinicians deal with plenty of dangerous substances and infectious diseases, but the idea of caring for an Ebola patient can make even the most dedicated nurse waver. When employees are reluctant to take on that task, risk managers must ensure that the hospital is not violating employment laws that might apply.
In that situation, hospital leaders should avoid a knee-jerk reaction, says Mark W. Peters, JD, partner with the labor and employment practice group of the Waller Lansden Dortch & Davis law firm in Nashville, TN.
"What I’ve heard from clinicians in the past weeks is we have sick patients, so employees must care for them, period, end of story,’" Peters says. "It’s an absolute for clinicians, as well as a licensing issue and an ethical issue. But there are some employment considerations to walk through before you declare it’s that simple."
For example, is a nurse critical of the infectious disease protocol or the hospital’s compliance? The nurses caring for Liberian Ebola patient Thomas Eric Duncan at Texas Health Presbyterian Hospital Dallas expressed concern initially about the inadequate protective gear available and prescribed under the then-current protocol. If one of the nurses refused to care for the patient because of those concerns, he or she could be considered a whistleblower, and any disciplinary action would be seen as retaliatory, Peters explains.
That is not to say disciplinary action, even termination, is out of the question if the clinician refuses assigned tasks without good reason, Peters says. Just take your time and consider what workplace law might apply. At the same time, remember that the hospital is obligated to protect employees under the Occupational Safety and Health Act.
The Occupational Safety and Health Administration (OSHA) has endorsed the guidelines issued by the Centers for Disease Control and Prevention (CDC) as procedures for dealing with the threat from Ebola, Peters notes. OSHA also will apply the Bloodborne Pathogens standard (1910.1030), which provides guidance for employees at risk of coming into contact with blood or other potentially infectious materials. Hospitals 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.
Other applicable standards include the Respiratory Protection standard (1910.134), the Personal Protective Equipment standard (1910.132), and the Hazard Communication standard (1910.1200). The General Duty Clause also requires employers to provide a safe work environment against known threats, which now include Ebola.
Peters cautions that the hospital could be sued even without any clear violation of labor law or applicable standards. The sensational nature of Ebola will appeal to some people seeking publicity.
"Plaintiffs’ attorneys could come up with a number of ways to allege liability, whether it’s related to failure to dispose of infectious waste properly or letting a nurse who just came back from Africa care for patients the next day," Peters says. "It only takes $350 to file a lawsuit in federal court. There are lots of good, creative lawyers out there who will pursue a case on its merits or they will pursue a case for another agenda. We’ve all dealt with those folks."
Mark W. Peters, JD, Waller Lansden Dortch & Davis, Nashville, TN. Telephone: (615) 850-8888. Email: email@example.com.