The Centers for Disease Control (CDC) has continually been issuing new guidelines for Ebola screening and treatment. Several states have differed with the CDC to require stricter procedures.[1] The incongruity and media attention has left providers and facilities struggling to prepare for the possibility of what Ebola might mean for their patients, communities and employees.
Arizona’s Special Rules
Arizona imposes separate infectious disease requirements. For example, diagnosing facilities must implement droplet and contact precautions for suspect cases of Ebola.[2] And they must report cases of Ebola to the county department of health within 24 hours.
If the state were to declare a public health emergency, additional regulations would apply. The Department of Health Services could suspend professional and healthcare licensing requirements[3], and recognize professional licenses from other states.[4] Emergency workers (any person registered with a local or state emergency management organization and certified to perform emergency functions) would be immune from liability for claims arising out of emergency management activities.[5]
Looking Beyond Laws and Regulations
Legal issues associated with staff exposure to Ebola warrant consideration. Some U.S. facilities are debating whether to treat Ebola patients, while others plan to rely upon volunteers to work with Ebola patients.[6] Hospitals and clinics subject to the Emergency Medical Treatment and Labor Act are generally not engaged in that debate, as they are required to provide a medical screening examination, and stabilizing treatment if needed, for emergency medical conditions.
Despite unprecedented challenges, the full array of legal requirements still apply during a public health emergency. For example, while HIPAA allows covered entities to disclose protected health information to public health authorities like the FDA, CDC and OSHA without patient authorization, the disclosure must be limited to the minimum information necessary to accomplish the public health purpose.[7]
As for workplace issues, here are a few tips for employers:
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Ensure the latest CDC/WHO guidelines are being followed, the appropriate personal protective equipment (PPE) is available, and key personnel are thoroughly trained on how to use the PPE.
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Non-supervisory employees who refuse to perform work based on good faith beliefs about the safe conditions may be engaged in protected, concerted activity under section 7 of the National Labor Relations Act (NLRA). Disciplining or discharging employees or threatening to do so could trigger unfair labor practice charges. Note supervisors are not covered by the NLRA.
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A little-known and often forgotten provision of the federal labor laws is section 502 of the Labor Management Relations Act. This provision ensures an employee cannot be compelled to work, but critically, the employee must have a good faith belief that the conditions are abnormally dangerous. An employer following best practices will want to take the position that the workplace is not abnormally dangerous.
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OSHA’s General Duty Clause requires all employers to provide a safe workplace, but context, precautions taken and nature of the job are important to the analysis.
The following resources may be useful in addressing significant Ebola challenges:
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The Arizona Department of Health Services’ Ebola Preparedness website, with toolkits for a variety of types of providers.
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Available examples of policies and procedures, including Emory Healthcare’s Ebola preparedness protocols (Emory University Hospital has treated several Ebola patients).
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OSHA’s standards and directives for possible worker exposure to Ebola, including a fact sheet on protecting workers during pandemics.
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The Governor’s Council on Infectious Disease Preparedness and Response, created October 21, 2014. The Council has already begun discussing state-wide Ebola response plans, and may develop guidelines for handling evaluations of seemingly low-risk patients who nonetheless present with Ebola concerns.
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Links to additional resources and news articles can also be found on the websites for healthcare associations, including the Arizona Hospital and Healthcare Association, the Arizona Nurses Association; and accrediting bodies like the Joint Commission.
Snell & Wilmer’s healthcare law group is available 24/7 to assist with preparations and responses to the Ebola issue. For more information, please contact Barry Halpern at bhalpern@swlaw.com or 602.382.6345.
[6] http://www.reuters.com/article/2014/10/22/us-health-ebola-usa-interventions-idUSKCN0IB2OM20141022.
[7] 45 C.F.R. § 164.512.
