1. Are healthcare workers especially likely to be affected by COVID-19?
Yes, while OSHA has assured employers that “most American workers are not at significant risk of infection,” it has identified industries that may be at an elevated risk of infection, including healthcare, deathcare or mortuary services, laboratories, airline operations, border protection, solid waste and wastewater management, and those involving travel to areas where the virus is spreading, including China. Specific guidance for control and prevention for each of these potentially high-risk industries is available on the OSHA website. OSHA recommends “using a combination of standard precautions, contact precautions, airborne precautions, and eye protection” to protect healthcare workers.
2. What resources and guidance are available for healthcare employers regarding COVID-19?
On March 7, 2020, the Centers for Diseases Control and Prevent issued updated specifically for healthcare personnel, including topics such as risk assessment, monitoring, and work restrictions. The CDC recommends that healthcare settings take a “conservative approach” to employees who may have COVID-19, including looking out for a broader array of symptoms than recommended for other employers and committing to early testing of possible cases. To help employers make these tough decisions, the CDC has set out four categories of healthcare workers (high risk, medium risk, low risk, and no identifiable risk) and three different types of monitoring (self, active, and self with delegated supervision), with recommendations for each. A table setting these out is available on the CDC website. In short, the CDC recommends that all medium and high risk healthcare personnel be excluded from work for 14 days after their last exposure and subjected to active monitoring (daily communication about symptoms), while low risk personnel should work but practice self-monitoring with delegated supervision (such as testing temperatures and assessing symptoms prior to starting work).
The CDC has also issued for laboratory workers with samples that may contain COVID-19. These include specific labeling guidelines, use of Personal Protective Equipment, and procedures for conducting testing and decontamination to minimize the risk of exposure to laboratory staff. Under these guidelines, certain activities involving manipulation of potentially infected specimens should only be conducted in a certified Class II Biological Safety Cabinet in a BSL-2 facility. Clinical laboratories performing routine studies and diagnostic tests should follow standard laboratory practices when handling specimens potentially infected by COVID-19.
3. What are my obligations as a healthcare employer under the Occupational Safety and Health Act to protect my employees from COVID-19?
While OSHA has not developed specific standards for COVID-19, it has emphasized that healthcare employers are responsible for following standards applicable to Bloodborne Pathogens (29 CFR 1910.1030), Personal Protective Equipment (29 CFR 1910.132), and Respiratory Protection (29 CFR 1910.134) as well as the General Duty Clause ((29 U.S.C. § 654(a)(1)). For employers who are in high-risk industries, including healthcare, OSHA recommends employers consider controls such as identifying and isolating suspected cases, environmental decontamination, and worker training, especially about the use of Personal Protective Equipment and analogous situations involving Bloodborne Pathogens.
OSHA’s General Duty Clause requires all employers to provide a safe work environment against known threats, which may now include COVID-19, so OSHA recommends that all employers stay vigilant to the evolving outbreak situation and adopt additional precautions as necessary. Violations of the General Duty Clause could result in fines of up to $70,000 for willful violations and up to $7,000 for each mistake.
4. What can I do if an employee refuses to treat patients infected with COVID-19 due to fear of infection?
Refusal to treat a patient can have serious consequences for the healthcare provider entity, the healthcare profession refusing to provide the care and, of course, the patient. For example, the Emergency Medical Treatment and Active Labor Act (EMTALA), requires healthcare providers to treat patients who need emergency healthcare treatment. Generally, only healthcare providers are liable for EMTALA violations, not the individual employees who work for the hospital. To minimize the risk of EMTALA liability, healthcare employers should implement and strictly enforce policies prohibiting their employees from refusing to treat patients who have contracted, or are suspected of having contracted, COVID-19 and who need emergency care. For licensed clinical care workers such as nurses, state licensing requirements may mandate a complaint be filed against the worker who refuses to treat, and the appropriate state licensing board may take further disciplinary action. Employers who implement policies prohibiting their employees from refusing to treat patients or enforce discipline for employees who do refuse to treat patients will have a straightforward legal defense against any claims of employment discrimination, provided that such policies are consistently enforced against all employees who refuse to treat.