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
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.
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.
be reached at (813) 223-7333 or paul.waters@