NIOSH alert could have legal implications

ADA, product liability suits at issue

Questions of reasonable accommodation for workers under the Americans with Disabilities Act (ADA) and of product liability if workers develop a severe allergy from occupational exposure to latex gloves could be affected by the recent National Institute for Occupational Safety and Health (NIOSH) alert for preventing allergic reactions to latex among health care workers.1 (See cover story in this issue.)

In the alert, NIOSH recommends that if hospitals choose to supply HCWs with latex gloves, those gloves should be powder-free and low-allergen, overtly suggesting that those gloves are less likely to produce allergic reactions than the powdered type.

"The proteins responsible for latex allergies have been shown to fasten to powder that is used on some latex gloves," the NIOSH alert explains. "When powdered gloves are worn, more latex protein reaches the skin. Also, when gloves are changed, latex protein/powder particles get into the air, where they can be inhaled and contact body membranes. In contrast, work areas where only powder-free gloves are used show low levels or undetectable amounts of the allergy-causing proteins."

Many manufacturers supply powder-free gloves, along with the powdered variety that is not low-allergen. According to an attorney who represents HCWs in product liability suits against manufacturers and distributors of latex gloves, the defendants contend that there is no problem with powdered latex gloves and no scientific proof that they can cause severe allergic reactions among users — an assertion the attorney finds "shocking."

Alert may prove relevant in lawsuits

In fact, Lauren S. Antonino, JD, an attorney with Meadows, Ichter & Trigg in Atlanta, says the NIOSH alert could go a long way in court to counter manufacturers’ claims.

"Whether powdered gloves are less safe is a very debated issue, and I don’t know whether [the NIOSH alert] will constitute admissible evidence for someone who was injured before [it] came out. But let’s suppose next year some other unlucky health care worker develops a life-threatening immediate hypersensitivity to latex. Then, when you talk about what the manufacturers knew or should have known, what the standards in the industry were, it becomes much more relevant, especially for those cases. If it does anything, it certainly helps," says Antonino.

Hospital Employee Health requested an interview with the Washington, DC-based Health Industry Manufacturers Association (HIMA), which represents latex glove manufacturers, to discuss the implications of the NIOSH alert to latex glove manufacturers. However, HIMA officials chose instead to fax a prepared statement in response, which in its entirety reads:

"Health care workers and their employers deserve as much information and education as possible to effectively balance the need for personal protection with the awareness and management of latex sensitivity. The National Institute for Occupational Safety and Health is well equipped to implement this important communications task, and HIMA stands ready to help the agency facilitate this public education process."

Antonino says changes in latex glove manufacturing and purchasing will come about in part due to litigation and legislation that is being introduced in states such as Oregon and New York to eliminate powdered gloves from health care settings.

"People will become more educated on the issue, and it will put pressure on manufacturers to make the necessary changes to get better and safer gloves out there," she says. "As long as glove purchasers are willing to buy less expensive gloves, glove manufacturers are going to keep making and selling them."

Formerly a defense lawyer, Antonino says she came to the plaintiffs’ side on this issue "because I really believe that what has happened didn’t have to happen, and that there was wrongdoing on the part of the manufacturers and/or distributors. I don’t believe that hospitals really knew or understood that much about the situation and that their awareness of it has only recently been heightened, whereas I believe that certain manufacturers and/or distributors knew earlier and didn’t say or do enough about it."

What accommodations are reasonable?

Hospitals also will become even more attentive to the issue as HCWs begin to press ADA claims, Antonino adds. The grounds will be that unless their employers make changes as outlined in the NIOSH alert, they are not making a reasonable accommodation for a disability that is occupationally caused.

"Some plaintiffs’ lawyers are going to use [the NIOSH alert] as an offensive weapon in an ADA reasonable accommodation challenge," she says. "Hospitals can reasonably expect that some plaintiffs’ attorneys are going to press ADA claims against them if they are unwilling to do it. Whether they will actually be found liable gets into a test of the ADA. Many supporters of the NIOSH proposals believe that if hospitals make these changes, not only are they doing the right thing in providing a safer work environment, but also they actually will find in the long run that they will save money."

Hospitals ultimately will save money by purchasing products that help prevent occupational latex allergies because of decreased workers’ compensation costs and decreased downtime, she explains.

"When you get into an ADA analysis, one factor is the financial repercussions of the requested accommodation. Hospitals might at first think it is going to cost them a lot of money, and if they have only a couple of affected workers, it isn’t a reasonable accommodation if they have to shoulder a financial burden," Antonino says. "But what I understand from institutions that have made this change is it doesn’t cost more money, and they actually save money by making the environment safer. Therefore, it is a reasonable accommodation."

Reference

1. National Institute for Occupational Safety and Health. Preventing Allergic Reactions to Natural Rubber Latex in the Workplace. DHHS (NIOSH) Pub. No. 97-135. Washington, DC: NIOSH; 1997.