Tuberculosis is once again raising its proverbial head -- now this disease may require employer responses under several state and federal laws!
According to the Centers for Disease Control, over one third of the world’s population (nearly 2 billion people) have tuberculosis! New infections occur at the rate of one per second and approximately 2 million people die per year from the disease! Statistically, one in ten latent infections will progress to “active” TB disease which typically kills half of its victims if left untreated. The disease is experiencing a resurgence because of a rise in HIV infection levels, drug abuse, and HIV/AIDS. There has also been significant neglect of worldwide TB control programs. As a result, according to the Centers for Disease Control, drug resistant strains of TB are emerging and spreading.
The dangers associated with this disease are noted in the March 1, 2013 article in the Wall Street Journal, “Dangerous TB Patient Detained on U.S. Border.” The article notes that this is “the first person to cross and be held in detention while infected with one of the most severe types of drug-resistant tuberculosis known today.”
Consider also the recent complaint filed against Pilgrim’s Pride Corporation, No. 13-CV-924 (N.D. Tex. Feb. 28, 2013). The plaintiffs are family members of employees that worked at the company, and are alleging that they were exposed to life-threatening communicable infection from their family members who were employees that were exposed to life-threatening communicable infection at their place of employment!
As an employer, unless you are directly involved in the healthcare industry, you will typically be ill-equipped to respond in any meaningful fashion to this health hazard. Frequently you may also be unaware of what potential responses should include after receiving information from an employee, employee family member, or a third party that an employee may be infected or may have been exposed to an infected individual. The following action items and potential liabilities must be considered by an employer:
Department of Public Health
Since TB constitutes a public health hazard, the employer should contact its local Department of Public Health (DPH), to obtain additional information. The DPH will be a valuable resource for the employer including actually possibly visiting the workplace to conduct an investigation among the employees regarding potential exposure and providing employee TB screening if there has been a report of active TB carriers within the workplace. Often the DPH will advise the employer of alternative courses of action which must be considered and the employer must document its actions which may include requiring the infected employee to remain away from work to prevent further infection.
OSHA has no regulation that specifically deals with the health hazards associated with TB outside of a healthcare setting. While OSHA has become involved with TB in a healthcare setting where employees are reasonably expected to be exposed to patients who may be TB carriers, in a non-healthcare workplace it typically will refer the employer to the DPH. There is no requirement under OSHA regulations to report a case of employee infection to the agency. Likewise, there is no requirement to record an incident of an employee infection on the OSHA 300 Log unless there is a medical determination that the infection is “work related” (which typically would be limited to those workplaces where employees are routinely expected to treat patients or provide services to individuals who may have the disease).
Under workers’ compensation laws, the employer is legally responsible to provide benefits to an employee who sustains an injury or illness that “arises out of and in the course of employment.” Since TB is not typically a hazard that “arises out of the employment,” the employer would in most cases not be responsible for worker’s compensation benefits if an employee contracts TB (again, unless the employer is involved in work activities where employee exposure to TB is reasonably expected within those activities). In any event, medical evidence would be required to establish that the exposure occurred within the course of employment.
Family and Medical Leave Act
Under the FMLA, an employer which is subject to the Act and whose employees qualify for leave under the Act, may be required to provide an employee up to twelve (12) weeks of unpaid leave for the employee who has developed a “serious health condition” as a result of TB or to allow that employee, based upon a physician’s certification, leave to provide care and support to an immediate family member who has developed a “serious health condition” resulting from TB. In that case, the employer must comply with the Act regarding appropriate notifications and documentation, particularly relating to return to work. One area that is unclear is whether the employer can require an employee to utilize FMLA leave where the employee may have TB exposure and symptoms of infection and the employer is concerned about whether the employee should be kept away from the workplace while being evaluated to determine if the employee has active TB and could be infectious.
Americans with Disabilities Act
Under the ADA, a qualified employee with a “disability” constituting a significant impairment of a major life activity, cannot be discriminated against in his/her employment. This protection includes an employee who currently has a disability, has a history of a disability or is perceived by the employer to have such a disability.
In the context of TB, the employer can have several potential liabilities. Initially, if the employee’s TB infection has resulted in a serious and chronic lung impairment (e.g., fibrosis, scarring, reduced pulmonary function) the employee may have a disability affecting the major life activity of breathing which could require the employer to accommodate the employee with leaves of absence for treatment, reasonable modifications to work activities because of the employee’s inability to perform certain work functions (e.g., certain exertions, use of respirators, exposure to certain substances).
In addition, the employer could be at legal risk if the employee were to claim that the employer refused to hire the employee or to provide other employment benefits to an existing employee because the employer was aware of the employee’s history of a TB related disability or a perception of a disability related to TB when no such disability in fact existed.
Unfortunately, it appears that another worldwide health hazard is making a resurgence and, like most such hazards, has already and will continue to impact the workplace. It is recommended that the employer take the following steps to preplan for such a hazard.
- Obtain information on the disease from the local Department of Public Health, the Centers for Disease Control, or the employer’s local health provider so that the employer can determine whether there is a TB health risk in the community and/or within the particular racial or ethnic groups which may be within the workplace.
- Inform its employees that the employer is committed to providing a safe and healthy workplace (required under the OSHA Act) and that it wants to protect its employees against potential exposure to any disease whether or not work-related, including TB, within the workplace.
- Advise employees that they are required to report immediately to the employer any communicable diseases (including TB) so that the employer can institute appropriate action with public health authorities to control the spread of the disease within the workplace and ensure that an adequate medical response is occurring.
- Inform employees that all such medical information will be maintained confidentially and that no employee will be subjected to retaliation for reporting such information.
- Ensure that the employer documents its actions to respond to actual reported medical or other information involving TB, including recommendations from the DPH, medical providers and the affected employees as the situation is resolved.
- Follow the employer’s policies relating to documenting any requests for FMLA or other leaves which may be required to treat TB.
- Document any employee requests for an accommodation and the interactive process with the employee for any TB related “disability”.
If the employer becomes informed of the facts relating to TB and responds in a reasonable manner as outlined above, the employer will be able to properly respond to this health hazard to protect the health of its employees, as well as to limit its potential legal liability.