OSHA steps into the fray on Ebola

The Ebola outbreak has put hospitals across the country in a difficult position. Nurses and doctors are understandably concerned about the risks of dealing with patients potentially infected with Ebola, as are hospital administrators, yet fully complying with CDC guidelines can be extremely expensive in an environment in which many hospitals operate on very thin margins.

Now administrators have to factor in an additional pressure: OSHA has recently stated that it has jurisdiction to pursue hospitals that do not meet safety standards for infection control and points to CDC guidelines as the “authoritative source of information” on how to protect workers who could have contact with Ebola patients.

Jonathan Snare of Morgan Lewis has provided an insightful analysis of how to address the potential of an OSHA inspection in these circumstances.

“Although it may be a laudable goal to adhere strictly to the CDC guidelines, not all hospitals will have sufficient resources to do so,” Snare writes. “Indeed, since the guidelines keep changing, a hospital may be in compliance one day and out of compliance the next. Given these practicalities, a hospital may reasonably decide that it will not perfectly adhere to the guidelines (or simply cannot comply with the guidelines).”

“When making such a decision, the hospital should keep in mind that the general duty under OSHA is to provide a safe workplace. The question therefore is: If an Ebola patient were admitted at the hospital, are the safety measures that are in place reasonably likely to protect employees from infection? Do the employees have adequate equipment, well-crafted policies, and training, such that contagion is reasonably unlikely? If the answer to these questions is yes, then, as a matter of enforcement discretion, OSHA would be unlikely to pursue a hospital.”

As is frequently the case, good communication with employees is critical. Employees are understandably concerned and need to know that their employer shares their concerns and is taking appropriate action.