Synergist - September 2009

have a legal duty to provide employees with “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Acting OSHA Secretary Jordan Barab stated on May 5, 2009, that OSHA would use the general duty clause to enforce guidance for employers issued by the Centers for Disease Control and Prevention.

If H1N1 mutates into a more deadly form, OSHA would expect employers to perform a workplace assessment and determine whether they need to develop a plan to protect employees from potential exposure. Employers in the health care setting would be expected to have contingency plans to protect workers from being exposed to and spreading the virus. The federal government and many state and local government bodies are already working with health care providers to implement such plans.

Employers in health care are not the only ones with such an obligation. Any employer whose employees deal with the public should develop contingency plans by evaluating the workplace and determining which controls are necessary to protect workers. To minimize potential OSHA liability, prudent employers must consider engineering controls (changes to the physical work environment to reduce exposure to the flu hazard), administrative controls (changes to work schedules and tasks to minimize flu hazard exposure), work practices (providing training, hand sanitizers, vaccines, etc.) and personal protective equipment (such as N95 respirators and latex gloves).

The California regulation requiring protection against infectious airborne diseases became law in August. Codified as section 5199 of Title 8, Code of California Regulations, the standard covers health-care workers and related workplaces as well as emergency responders. Employers in these settings must develop exposure control procedures and train employees to follow them. Employees must also be involved in periodic reviews and assessments of the procedures. Additional requirements include basic exposure controls such as source control, hygiene, and cleaning and decontamination procedures.

Federal OSHA seems poised to follow California’s lead. Barab has indicated that the agency is considering a similar

aerosol transmissible disease standard. Moreover, Rep. George Miller, chairman of the House Education and Labor Committee, described as “troubling” OSHA’s lack of a mandatory standard that addresses workplace hazards posed by airborne transmissible diseases. However, rapid development of such a standard is unlikely. Recent standards (without extraordinary involvement by Congress) have taken from seven to ten years to develop. Such a timetable would be far too slow to counter a flu virus that can mutate and spread rapidly.

Finally, employers must carefully monitor their record-keeping obligations. When the H1N1 virus causes days away from work, restricted activity, or job transfer, the typical entries for the OSHA 300 and 301 forms are required.

Other Pitfalls

OSHA requirements are not the only laws potentially implicated by a pandemic flu outbreak. Workers’ compensation benefits can be due if an employee contracts H1N1 as a result of occupational exposure. Benefits vary by state and can include temporary disability benefits, reasonable and necessary medical treatment, and even permanent disability for developments such as reduced respiratory capacity. Employers that provide short- or long-term disability benefits might be required to pay these even if the employee does not contract the illness through work. The Family and Medical Leave Act (FMLA) requires employers with more than 50 employees to provide up to 12 weeks of unpaid leave to a qualified employee with a “serious health condition.” Employees would also be eligible for FMLA leave to care for family members.

In short, apart from the priceless value of the lives of co-workers, friends, family and customers, prudent employers have considerable incentives to evaluate their workplaces and determine whether a protective contingency plan is necessary. Should H1N1 return in a more deadly form, those employers will be prepared to continue business secure in the knowledge that their workplaces are safer because of their foresight.