Ebola May Be Bad Enough, But There Is OSHA, Too

Hospital Industry Viewpoint

November 10, 2014

Although most hospitals likely will never encounter a true case of Ebola, that does not mean they are immune to its harms. With nurses and other clinicians clamoring for adequate workplace protections, hospitals must decide whether they have the resources to comply with CDC guidelines. If not, they must decide what to do to mitigate their risk of an OSHA enforcement action.

It goes without saying that every hospital wants to protect its workers from Ebola. Yet, exactly how much protection can each hospital offer? According to one survey, only 6% of U.S. hospitals are well prepared to receive a patient with Ebola. This is not unexpected, given that most hospitals continue to operate on very thin margins and that full compliance with Centers for Disease Control and Prevention (CDC) guidance would be costly. Although the disconnect between CDC expectations and hospital practices is understandable, what does that mean with regard to the Occupational Safety and Health Administration (OSHA)? What exposure to OSHA enforcement does a hospital have if it has not completely complied with CDC guidelines, even in the absence of an actual Ebola patient presenting to the hospital? In short, the hospital’s risk profile depends on how reasonable its actions are, even if they are less than ideal.

OSHA Takes a Position

On its newly released website dedicated to Ebola, OSHA has stated that it has jurisdiction to pursue hospitals that do not meet safety standards for infection control. Indeed, OSHA actually references CDC guidelines as the “authoritative source of information” for the protection of healthcare workers who potentially have contact with Ebola patients. OSHA’s description of the applicable safety standards consists of a mixture of OSHA standards pertaining to bloodborne pathogens, personal protective equipment, and respirators and CDC Ebola-specific guidelines. There can be no mistake, therefore, that the gold standard is compliance with the CDC requirements, including correctly using adequate personal protective equipment and similar measures, no matter what the expense may be.

Implications of Deviations from CDC Guidelines

Although it may be a laudable goal to adhere strictly to the CDC guidelines, not all hospitals will have sufficient resources to do so. 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. Moreover, some would argue that the CDC guidelines are not binding requirements on hospitals and, even less so, standards to which OSHA can mandate compliance.

Proving That Reasonable Measures Have Been Taken

As most hospitals presumably do not want to be caught unaware by an unannounced OSHA inspection, a hospital may decide that it should take certain precautionary steps to build its case that it has been reasonable in its response to the potential risk. For instance, a hospital can document that it did a risk-assessment analysis, which shows the risks specific to its organization and the mitigation steps taken. It can also outline the CDC recommendations that it has chosen not to follow and document why those steps were either unnecessary or impractical. Most importantly, to ensure employee morale and to avoid whistleblowers, communication with employees is key. Employees need to understand that the employer is concerned and has taken proactive steps to protect them.

Jonathan L. Snare

Albert W. Shay