Infectious disease risks stump employers

With measles cases increasing more than tenfold in the past three years, employers face a conundrum when dealing with infectious disease outbreaks creeping into the workplace.

Employees sick with a contagious disease may create a health and safety hazard by coming to work, but most employers can only encourage workers to have vaccinations rather than mandate them.

Workplace interactions could also give rise to workers compensation claims if employees can prove they contracted an infectious disease at work, experts say.

Measles is one of the most contagious of all infectious diseases — up to nine out of 10 susceptible persons with close contact to an infected individual will develop measles, according to the U.S. Centers for Disease Control and Prevention. Measles incidents have surged in 2019.

Current outbreaks are linked to travelers who brought measles back from other countries such as Israel, Ukraine and the Philippines, where large measles outbreaks are occurring, according to the CDC.

The disease can quickly spread in the workplace if employees have not been vaccinated, experts say.

In May and June 2016, for example, a measles outbreak at a U.S. Immigration and Customs Enforcement detention center in Arizona sickened 22 detainees and nine staff, according to a May 2017 CDC report. Staff participation in on-site vaccination clinics initially was low, in part due to federal personnel policies and contractual agreements that do not require staff to be vaccinated. But reports of illness from personnel who had developed measles might have prompted other staff to get vaccinated because by Aug. 4, 2016, 445 staff — 87% — were considered to have evidence of immunity.

“The most important measure for prevention of measles transmission is vaccination,” said Dr. Marie De Perio, medical officer at the National Institute for Occupational Safety and Health and an infectious disease physician in Cincinnati.

The current measles outbreak caught many employers off guard, and they are scrambling to figure out what they can and should be doing to prevent its spread in the workplace, experts say.

“From the point of view of the employer, their situation is they don’t really know which of their employees are vaccinated and which ones are not,” said Dr. Adrian Hyzler, chief medical officer for Esher, England-based Healix International Ltd., which offers health care, assistance and risk management solutions to companies in the insurance industry and other sectors.

“If they have a workforce who are working closely together, at a factory for instance, and one of their employees has measles … people around them who are not vaccinated are very likely to get measles,” he said.

Employers can encourage workers to receive infectious disease vaccinations by offering vaccines on-site or paying for vaccines, but they generally cannot mandate vaccination, except potentially in the health care sector — although even that authority has limitations (see related story).

“They cannot require their employees to get the (measles, mumps, rubella vaccine),” Dr. Hyzler said. “That’s one step too far. If you’re a health care employer, then you can. Say you run a clinic. You can say that all your health care providers must have the MMR and perhaps the hepatitis B (vaccine). They’re able to do that because they come into contact with patients and could transmit the infection.”

Most other employers, however, could be found in breach of employment law if they mandate vaccinations, experts say.

For example, a 2012 informal discussion letter from the U.S. Equal Employment Opportunity Commission’s Office of Legal Counsel stated that an employer covered by the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 cannot compel all employees to get flu shots regardless of their medical conditions or their religious beliefs during a pandemic. The employer must provide a reasonable accommodation for employees who do not wish to be vaccinated, unless doing so would pose an undue hardship under Title VII.

The EEOC has sued several health care employers over their vaccination policies.

In June, Memorial Healthcare, which operates a hospital in Owosso, Michigan, agreed to pay $74,418 to settle a religious discrimination lawsuit in which the EEOC alleged that Memorial violated federal law by refusing to hire a medical transcriptionist who refused flu shots on religious grounds. The transcriptionist offered to wear a mask during flu season, which had been determined an acceptable alternative for those with medical problems with the flu shot, but which the hospital allegedly refused to extend to her, according to an EEOC statement. A Memorial Healthcare spokesperson could not be reached for comment.

“They can certainly educate employees about the safety of vaccinations and why it might be prudent to get the vaccination, but they cannot force employees to get the vaccination,” said Glenn Grindlinger, a New York-based partner with Fox Rothschild LLP, which has represented employers dealing with infectious diseases.

Other infectious diseases can present similar legal or regulatory challenges.

In March, the 8th U.S. Circuit Court of Appeals in St. Louis sided with the U.S. Occupational Safety and Health Administration in a lawsuit filed by Wal-Mart Stores East LP, a Walmart distribution center in Alachua, Florida, over two purported violations of OSHA’s bloodborne pathogens standard, according to WalMart Stores East LP v. Acosta. The standard aims to prevent the transmission of hepatitis B in the workplace by directing employers such as Walmart Inc. to make the vaccine available to all employees with occupational exposures. OSHA alleged the distribution center failed to comply with regulations pertaining to providing hepatitis B vaccinations to employees on a serious injury response team at one of its facilities. An administrative law judge of the Occupational Safety and Health Review Commission ruled the agency met its burden to establish the company had committed both violations and imposed $26,000 in total penalties, with the 8th Circuit declining to vacate the citations.

“We have thorough bloodborne pathogen safety processes in place at all of our facilities in the country,” a spokesperson for parent company Walmart based in Bentonville, Arkansas, said via email. “While we disagree with the court’s ruling related to execution of our program at this individual distribution center, we have reinforced the need to comply with these processes at that facility.”

Employers can also get into serious legal trouble if they breach the confidentiality of sick employees, experts say.

“When an employer learns that an employee has an infectious disease and could have possibly exposed individuals in the workplace to that infectious disease, there is often a knee-jerk reaction to let employees know about that,” Mr. Grindlinger said.

But employers could be found in violation of the ADA, the Health Insurance Portability and Accountability Act and state and municipal privacy rules, he said.

“That is why it’s so important to work with your public health authorities, because they will help guide the employer on how to and in what matter to notify individuals that may have been exposed to the infectious disease, including other employees,” Mr. Grindlinger said.

Educating employees about infectious diseases is the primary function of an employer during disease outbreaks, and they can access critical information on the CDC website and through local health departments, said Gregory Wilson, Houston-based Southwest regional risk control manager for USI Insurance Services LLC. Employers can dedicate safety meetings normally geared toward common workplace hazards to discussing infectious diseases, he said.

The level of risk for an infectious disease outbreak in the workplace is tied to factors such as a specific pathogen and how it is spread, as well as specific work environments, said Dr. Ronald Leopold, chief medical officer for Lockton Cos. LLC. For example, a hepatitis A outbreak would be a more troubling risk in a food service or health care environment than it would be in a call center, he said.

“If you’re in a white-collar environment, the risk level is rather low,” he said.

NIOSH has outlined a hierarchy of controls framework to determine how to implement feasible and effective control solutions for occupational hazards, with hazard elimination being “the most preferred measure” although it is not always possible for infectious agents, Dr. De Perio said.

“The use of personal protective equipment is the least preferred method of prevention and control because it’s pretty highly dependent on the employees to use it and to use it correctly,” she said, referring to equipment such as face masks.

Employers should immediately put employees sick with a contagious disease on a leave of absence and can require them to stay home from work until they are medically cleared by their physicians — even if they want to work, experts say.

“To an employer, it’s a horrible disadvantage to have a contagious employee come to work,” said Katherine Dudley Helms, office managing shareholder for the Columbia, South Carolina, office of Ogletree, Deakins, Nash, Smoak & Stewart P.C. who advises employers on ADA and other employment issues.

Claiming measles

The spread of measles and other infectious diseases could potentially trigger a workers comp claim, experts say.

“In a location that does not have exposure to infectious diseases ... a claim submitted for an employee that got measles would probably be denied,” Mr. Wilson said. “In a health care setting, the workers comp carrier would want to have additional information to conclude that, yes, the employee did contract the infectious disease in the workplace.”

An employee would have a hard time proving they contracted measles at work because of the nature of the disease, lawyers say.

“How the person contracted it would be a significant factor in whether workers comp is applicable,” Mr. Grindlinger said.

“At least in New York, if the individual contracted measles or any other infectious disease from the workplace and they can prove they contracted it from the workplace, which may be difficult to prove, there may be a viable workers comp claim. But in most circumstances that I have dealt with, the individual did not contract the disease in the workplace. They contracted it outside the workplace or they don’t know how they contracted because there is an incubation period for most infectious diseases.”

“For the disease to be compensable, it has to be something that you aren’t going to be in contact with as a member of the public,” said Bernard Tisdale, office managing shareholder of Ogletree’s Charlotte, North Carolina office. “On the flip side, they might have an argument if the employer knew about it ... and you had more than one person affected. I could see an argument under some state statutes that it might be compensable.”