What Duty Does an Employer Have to Protect Employees from Infectious Diseases?

Concern over infectious diseases has captured the imagination of much of the country in recent months, particularly with regard to Ebola virus disease (EVD). Only a handful of EVD cases have been reported in the U.S., and health officials and experts have repeatedly stated that the disease is unlikely to pose a serious threat to the country. Other diseases, such as influenza, pose a far greater threat in the U.S. but generally receive less media attention. Regardless, since a disease outbreak is on the nation’s mind, it raises the question of what legal duties employers owe to protect their employees from infectious diseases. The answer depends largely on the type of employer.

The first case of EVD in the U.S. was diagnosed at a hospital in Dallas, Texas in September 2014. That patient has since died, and two nurses who treated him were subsequently diagnosed with EVD. The Centers for Disease Control and Prevention (CDC) is investigating reports that health care workers treated the initial EVD patient for about three days, from September 28 to September 30, without wearing protective equipment. As many as 70 workers were exposed to the patient during that time, but only the two nurses have tested positive for the disease. EVD is not airborne and can only be transmitted through direct contact with an infected person’s blood or other bodily fluids.

The actions and preparedness of the Dallas hospital, including an alleged lack of safety protocols, drew a harsh rebuke from the hospital’s nurses. The incident has raised concerns about whether the hospital took adequate precautions to protect its workers from infection. Laws like the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., require employers to provide reasonable protection against occupational diseases. This could apply to workers in health care and other fields where ordinary job duties make exposure to infectious diseases likely. See American Dental Ass’n v. Martin, 984 F.2d 823 (7th Cir. 1993).

The Occupational Safety and Health Administration (also OSHA) and the CDC have issued guidelines for health care providers and other employers regarding protective equipment and other measures to use during an EVD outbreak, and similar rules apply for other diseases. In addition to health care workers, workers in laboratories and mortuaries could be at risk, according to OSHA. The same is true for travel industry employees, border and customs officials, and emergency responders. Employers in these industries are required to abide by various safety protocols, including for infectious diseases.

Other statutes, such as the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and the National Labor Relations Act, 29 U.S.C. § 151 et seq., may protect employees from adverse actions related to an outbreak or pandemic. The Equal Employment Opportunity Commission (EEOC) has issued guidance for employers with regard to influenza, identifying what information they may request from employees under the ADA. An individual exposed to an infectious disease in the course of performing his or her job duties may also be able to recover damages under a negligence theory. See Casarez v. NME Hospitals, 883 S.W.2d 360 (Tex. App.–El Paso 1994).

The Resnick Law Group’s employment discrimination attorneys represent employees in New Jersey and New York in claims regarding unlawful employment practices under municipal, state, and federal law. To schedule a confidential consultation with an experienced employment law advocate, contact us today online, at 973-781-1204, or at (646) 867-7997.

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