OSHA Sets H1N1 Flu Employer Responsibility Standard for Health Care Workers

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has  issued a compliance directive that clearly establishes a level of employer responsibility to health care workers to prevent the spread of H1N1 flu. The establishment of the standard may allow some injured workers to circumvent "the exclusivity doctrine" in workers' compensation and hold employers responsible in the civil justice system for resultant injury or death should the employer's fail to comply with is directive.


The "exclusivity doctrine" in workers' compensation limits an employers' responsibility to only scheduled workers' compensation benefits for harm caused to workers that "arises out of" and occurs "within the course of employment." Those benefits have become increasingly difficult to obtain for a multitude of reasons.


The OSGA directive closely follows the prevention guidance issue by The Centers for Disease Control (CDC) to prevent the spread of H1N1 flu. The purpose of the compliance directive is "to ensure uniform procedures when conducting inspections to identify and minimize or eliminate high to very high risk occupational exposures to the 2009 H1N1 influenza A virus."


The CDC has reported that the H1N1 flu activity continues to be widespread in the US and remains above epidemic in proportion for the seventh consecutive week. Over 99% of all subtyped A viruses being reported to the CDC were 2009 influenza A (H1N1) viruses. A total of 171 deaths in children associated with the 2009 influenza A (H1N1) virus infection have been reported to the CDC.


OSHA announced, "In response to complaints, OSHA inspectors will ensure that health care employers implement a hierarchy of controls, and encourage vaccination and other work practices recommended by the CDC. Where respirators are required to be used, the OSHA Respiratory Protection standard must be followed, including worker training and fit testing. The directive also applies to institutional settings where some workers may have similar exposures, such as schools and correctional facilities."


"OSHA has a responsibility to ensure that the more than nine million frontline health care workers in the United States are protected to the extent possible against exposure to the virus," said acting Assistant Secretary of Labor for OSHA Jordan Barab. "OSHA will ensure health care employers use proper controls to protect all workers, particularly those who are at high or very high risk of exposure."


To read more about workers' compensation and the H1N1 Flu click here.

NIOSH: H1N1 Flu Is A Serious Risk to Healthcare Workers

The National Institute for Occupational Safety and Health (NIOSH) has declared that 2009 H1N1 Influenza poses a serious risk for healthcare personnel. With at least 4 deaths of nurses being reported in the media, NIOSH has stepped up its efforts to gather and analyze the prevalence of illness and fatalities among health workers.

"Healthcare personnel are at increased risk of occupational exposure to the 2009 H1N1 virus based on their likelihood for encountering patients with 2009 H1N1 illness. In contrast to seasonal influenza virus, 2009 H1N1 influenza virus has caused a greater relative burden of disease in younger people, which includes those in the age range of most healthcare personnel. For some healthcare personnel, this higher risk of exposure and illness may be compounded by the presence of underlying illness which places them at higher risk of serious flu complications, such as asthma, diabetes, or neuromuscular disease. Of particular concern to the healthcare workforce, which is largely female, is the fact that pregnant women are among those groups considered to be at higher risk of severe infection from 2009 H1N1."

For more articles on Workers' Compensation and the Flu Pandemic click here. 

Compensating Sick Workers at Home with H1N1 Flu

While the United States has established a national protocol to meet the medical challenges H1N1 flu pandemic, there remains a void on how to pay workers who are ill and have been encouraged by the government to stay home.  The litigious workers' compensation adversarial system may provide benefits ultimately for those who can demonstrate that their illness "arose out of and occurred in the course of the employment," after months, if not years, of delay. 


Some states have temporary disability programs, fraught with bureaucratic delay and red tape, while the issues of denial in the workers' compensation claims become identified. If held to be compensable, reimbursement is then sought by the temperate disability plan, public or private, 


The issues of a lack of an efficient wage replacement system for those workers affected by the H1N1 flu will be addressed by Congress shortly. The chorus of advocacy is increasing as this debate advances. The following is a recent post from the occupational-environmental mailing list setting forth a pretty persuading argument to establish a plan to pay sick workers with H1N1 flu.

Sick At Work

When the first cases of the H1N1 virus (swine flu) were confirmed in America back in April, the Centers for Disease Control and Prevention advised that sick individuals stay home from work or school. "Influenza is thought to spread mainly person-to-person through coughing or sneezing of infected people," the CDC said."If you get sick, CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them." However, for many Americans, staying home from work due to illness -- or to care for a sick child -- is an impossibility because of a lack of job-protected paid sick days. In response to the threat posed by H1N1, Rep. George Miller (D-CA) has proposed legislation that would "guarantee five paid sick days to employees at businesses with 15 or more workers who are directed to stay home by management." However, Miller's plan sunsets in two years and gives employers, not employees, the right to decide when leave is taken. Plus, under Miller's plan, employees cannot use leave time to care for a sick child. The Healthy Families Act (HFA), which is also before Congress, would guarantee seven paid sick days per year to all workers at firms with 15 or more employees. "Paid sick days has always been a good, common sense idea, but, in light of the recent H1N1 epidemic, it has also become a necessary one," said Rep. Rosa DeLauro (D-CT), an HFA sponsor. "Right when more and more workers are feeling economically vulnerable and afraid to even miss one workday, we face an extraordinarily serious health risk that spreads much more quickly if the sick do not stay at home." Last week, the Obama administration officially agreed, and endorsed the HFA.

LOW-INCOME WORKERS HIT THE HARDEST: The U.S. is currently the only developed nation that does not require some paid sick leave for workers. Nearly 40 percent of private sector workers have no paid sick leave, including 78 percent of hotel workers and 85 percent of food service workers. A survey last year by the National Opinion Research Center at the University of Chicago found that "68 percent of those not eligible for paid sick days said they had gone to work with a contagious illness like the flu." As CAP Senior Fellow Ann O'Leary and Karen Kornbluh, U.S. Representative to the Organisation for Economic Co-operation and Development, pointed out in The Shriver Report: A Women's Nation Changes Everything, "too often, most low- and many moderate-wage workers cannot access even the minimum benefits provided to more highly paid workers." And this is true of paid sick leave, as 88 percent of workers in the top 10 percent of wage earners have it, compared to just 22 percent of workers in the bottom 10. "Hopefully, employers are doing the right thing and not disciplining workers who are out sick as a result of the flu," wrote Center for American Progress Senior Economist Heather Boushey. "But there's no penalty for employers who choose not to pay workers in this situation, or who refuse workers any time off at all."

A BETTER BUSINESS MODEL: Big business organizations have panned the notion of required sick leave, with the Chamber of Commerce saying that "the problem is not nearly as great as some people say," and the National Association of Manufacturers warning that the HFA "would impose an inflexible government mandate on employers, making it more difficult for manufacturers to preserve and create jobs." However, lost productivity due to sick workers attending work and infecting others costs the U.S. economy $180 billion annually. For employers, the cost averages $255 per employee per year and "exceeds the cost of absenteeismand medical and disability benefits." The National Partnership for Women and Families actually found that "while a paid sick days policy would impose modest costs, the estimated business savings total $11.69 per week per worker from lower turnover, improved productivity and reduced spread of illness." The Center for Economic and Policy Research has also concluded that "there is no significant relationship between national unemployment rates and legally-mandated access to paid sick days." "When businesses take care of their workers, they are better able to retain them, and when workers have the security of paid time off, their commitment, productivity and morale increases, and employers reap the benefits of lower turnover and training costs," said National Partnership President Debra Ness.

LOCAL EFFORTS: Two major cities -- San Francisco and Washington, D.C. -- have implemented mandatory paid sick leave policies, while a third -- Milwaukee -- has passed the requirement, only to see it tied up in court. In addition, 15 states have proposed mandatory sick leave laws. "We are all being advised by our doctors to stay home if we're sick, but that is a cruel piece of advice if you don't have paid sick time," Maine Senate President Elizabeth Mitchell said. New York City is also looking at mandatory leave, which Mayor Michael Bloomberg has expressed support for, at least for the city's large employers. New York's proposed requirement would also allow workers to stay home in the event their child's school was closed for public health reasons. "Many working parents suffered this past spring because their children's schools were closed even though their children were not sick," said Donna Dolan, chairwoman of the New York State Paid Family Leave Coalition.

To read more about flu and workers' compensation click here.

US flu activity keeps climbing

Today's post was shared by CIDRAP and comes from www.cidrap.umn.edu

Highly magnified, digitally colorized  electromicrograph of 2009 H1N1 influenza virus,  the predominant strain this season. US influenza activity kept climbing last week, as several states outside the South reported widespread cases, and the 2009 H1N1 virus continued to be the predominant strain, according to the US Centers for Disease Control and Prevention (CDC). Ten states reported geographically widespread flu activity, up from just four southern states the week before. The ten are Alabama, Alaska, Kansas, Louisiana, Massachusetts, New York, Pennsylvania, Texas, Virginia, and Wyoming. Also, six states reported high influenza-like illness (ILI) activity as measured by visits to sentinel clinics, up from four states the previous week, the CDC reported. Nationally, 3.0% of medical visits were due to ILI, compared with the national baseline of 2.0%. States with high ILI activity were Alabama, Louisiana, Mississippi, Missouri, Oklahoma, and Texas. Another eight states cited moderate ILI activity, and the rest had low or minimal numbers. The CDC also reported a big jump in the percentage of respiratory samples that tested positive for flu: 24.1% (of 6,813 specimens), versus 17.8% a week earlier. An H1N1 season so far Of the positive specimens, more than 98% were influenza A viruses, and 2009 H1N1—the former pandemic virus, now a seasonal strain—accounted for nearly all of those that were subtyped. Only 1.8% of the positive specimens were influenza B isolates. Last week the...

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Compensating Adverse Flu Vaccine Reaction Victims

As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in the workers’ compensation system as well as the Federal program. The existence of these programs have received little publicity and may be difficult for the public to navigate without adequate representation. 

The US Centers for Disease Control and Prevention (CDC) announced this week that pandemic activity has now increased in the US. Tom Frieden, MD, director of the CDC, said, "We have had up until now many millions of cases of pandemic influenza in the U.S. And the numbers continue to increase." President Obama signed an Executive Order declaring the Swine Fu as a national emergency. Hospitalization and death rates have increased, yet again. Over 60 million have been immunized early for seasonal flu, so that providers would be available to administer  H1N1 vaccine when it becomes available. . 

Even though the supply has been tardy for the H1NI vaccine, the companies that supply the product have promised an additional flow of supply to meet the demand. The European pharmaceutical companies, Novartis’s Focetria, GlaxoSmithKline’s (GSK’s) Pandemrix, and Baxter’s Celvapan are under contract to supply a huge volume of vaccine to the US. Novartis alone has a $979 million contract to supply H1N1 vaccine to the US Department of Health and Human Services (HHS) which amount to 251 million does and the total 35% projected US supply. It is anticipated that the US supply may not arrive until the first quarter of 2010.

A recent Washington Post-ABC News Poll reflects that Americans are more worried than ever about the H1N1 flu. In a matter of weeks, from August 2009 to October 2009 those reportedly worried about getting the H1N1 flu increased from39% to 52%.  The CDC has been reluctant to advertise the need to about the vaccine because the supply has been limited and they were attempting to avoid public panic. Their program will pick up as the supply becomes increasingly available.

Adverse effects from the flu vaccine already are being reported. Deaths have been reported associated with the deaths of at least four nurses with 2009 H1N1The Vaccine Adverse Event Reporting System (VAERS) is a national vaccine safety surveillance program co-sponsored by the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). VAERS is a post-marketing safety surveillance program, collecting information about adverse events (possible side effects) that occur after the administration of vaccines licensed for use in the United States. The data is publically available through the CDC WONDER on-line database.

Workers’ Compensation programs have provided compensation benefits in the past resulting from adverse reactions to vaccines. In many jurisdictions, vaccinations afforded to employees resulting in a benefit to the employer against possible disastrous business consequences, have been considered to be “a mutual benefit.” Therefore, any disease arising from such vaccination has been deemed compensable.

Additionally, a Federal program has been established to shield the vaccine producers from liability claims. On October 1, 1988, the National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims hears the claims.

As of July 1, 2005, trivalent influenza vaccines have been added to the Table under this Category. Trivalent influenza vaccines are given annually during the flu season either by needle and syringe or in a nasal spray.  All influenza vaccines routinely administered in the U.S. are trivalent vaccines covered under this Category.  

The criteria for filing a claim under the VICP are the following:

• You may file a claim if you received a vaccine covered by the VICP and believe that you have been injured by this vaccine.
• You may also file a claim if you are a parent or legal guardian of a child or disabled adult who received a vaccine covered by the VICP and believe that the person was injured by this vaccine.
• You may file a claim if you are the legal representative of the estate of a deceased person who received a vaccine covered by the VICP and believe that the person’s death resulted from the vaccine injury.
• You may file a claim if you are not a United States citizen.
• Some people who receive vaccines outside of the U.S. may be eligible for compensation. The vaccines must have been covered by the VICP and given in the following circumstances:
• the injured person must have received a vaccine in the U.S. trust territories; or
• if the vaccine was administered outside of the U.S. or its trust territories:
1. the injured person must have been a U.S. citizen serving in the military or a U.S. government employee, or have been a dependent of such a citizen; or
2. the injured person must have received a vaccine manufactured by a vaccine company located in the U.S. and returned to the U.S. within 6 months after the date of vaccination.
• In addition, to be eligible to file a claim, the effects of the person’s injury must have:

1. lasted for more than 6 months after the vaccine was given; or
2. resulted in a hospital stay and surgery; or
3. resulted in death.

The VICP program has paid over $1.8 billion dollars from 1989 through 2009. Over 2,300 families have been paid to date with over 2,200 attorneys representing clients in such matters. "Compensated" are claims that have been paid as a result of a settlement between parties or a decision made by the U.S. Court of Federal Claims (Court). Approximately 18% of the benefits were paid to adults who received vaccines during the existence of the program. Since the program was expanded to adults who received vaccinations, the proportion of benefits to adults under the program has  increased proportionally. Nearly 52% of program awards in 2007 and 2008 went to adult vaccine recipients.

As the H1N1 vaccination program unfolds, those who suffer adverse reactions will be seeking benefits from both, the State workers’ compensation programs, as well as the VICP. Adequate dissemination of information concerning eligibility and procedural access to the programs will be of great benefit to the victims and their families.

For more articles on Workers' Compensation and the Flu Pandemic click here. 

Sick Leave Pay Law For H1N1 Advances

US Senator Chris Dodd (D-CT) has announced that he is preparing legislation to pay sick workers 7 days of sick leave for H1N1 flu. While workers' compensation benefits may be paid to disabled H1N1 flu workers, the threat of delay and denial has created an emergency that Senator Dodd indicates requires immediate Congressional attention. 


“This isn’t just a workers’ rights issue – it’s a public health emergency. Families shouldn’t have to choose between staying healthy and making ends meet,” said Dodd. “But if staying home means you don’t get paid, that’s an impossibility, especially for families struggling to make ends meet in this tough economy.”

“Workers should have paid sick leave as a matter of basic fairness,” Dodd continued. “But now sick leave is a matter of keeping Americans safe from this pandemic – and from the next one, whatever it may be.”

To read more about influenza and workers' compensation, click here.

He said, "It’s a matter of fairness for workers. It’s a matter of safety."

The CDC reports that H1N1 flu is now widespread in 48 states and may have infected as many as 5.7 million Americans. Fatalities amount to 672 Americans, which includes 129 children.

Aerial spraying pesticides to fight mosquitoes raises concerns over compensability for exposures

Based on reports from the  United States Centers for Disease Control (CDC) arial spraying of pesticides has been mandated in Texas because of the number of reported cases of West Nile Flu. Questions are now being raised as to the availability of workers' compensation benefits for workers who suffer illnesses flowing from the consequences of pesticide exposures.

The arial spraying of Dallas County commenced last night  with two planes being utilized, and will be continuing over the next few evenings in order to battle the mosquito population that is spreading the disease. The population is being requested to remain indoors to avoid exposure.

The state of Texas is not the only area in the United States where West Nile Flu is now spreading and preventive measures are being taken to stem the potential of an epidemic of illness. Throughout United States during 2012 there has been an increase in the amount of cases it being reported. See the CDC map above.

In most jurisdictions, workers' compensation benefits are available as a result of occupational exposures. There is the potential for a surge of claims as the network of benefits programs remains unprepared, especially in its beleaguered state. More preparation needs to be undertaken to handle such potential consequences such as a West Nile epidemic.

Read other blog posts about flu

The Urgent Need for Workers Compensation Flu Pandemic Planning

Sep 15, 2009

The 2009 influenza pandemic (flu) has created a new framework of acts and regulations to respond the World Health Organization's (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting...

http://workers-compensation.blogspot.com/

Compensating Adverse Flu Vaccine Reaction Victims

Oct 24, 2009

As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in ...

http://workers-compensation.blogspot.com/

Workers' Compensation: The Compensability of a Swine Flu Pandemic

Apr 24, 2009

The CDC has reported that Swine flu has impacted the US in the past: "Like seasonal flu, swine flu in humans can vary in severity from mild to severe. Between 2005 until January 2009, 12 human cases of swine flu were ...

http://workers-compensation.blogspot.com/

Workers' Compensation: OSHA Sets H1N1 Flu Employer ...

Nov 27, 2009

The OSGA directive closely follows the prevention guidance issue by The Centers for Disease Control (CDC) to prevent the spread of H1N1 flu. The purpose of the compliance directive is "to 

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CDC Issues H1N1 Flu Guidance to Healthcare Personnel-"stay home"

In an urgent need to protect healthcare workers from H1N1 Flu, the today CDC has issued guidance on infection control measures to prevent transmission of 2009 H1N1 influenza in healthcare facilities. The CDC continues to recommend that healthcare workers take time away from work if they are ill. The issue unanswered is whether workers' compensation insurance will pay temporary disability benefits for the absence?


The CDC has defined healthcare personnel as, "....For the purposes of this guidance, healthcare personnel are defined as all persons whose occupational activities involve contact with patients or contaminated material in a healthcare, home healthcare, or clinical laboratory setting. Healthcare personnel are engaged in a range of occupations, many of which include patient contact even though they do not involve direct provision of patient care, such as dietary and housekeeping services. This guidance applies to healthcare personnel working in the following settings:  acute care hospitals, nursing homes, skilled nursing facilities, physician’s offices, urgent care centers, outpatient clinics, and home healthcare agencies.  It also includes those working in clinical settings within non-healthcare institutions, such as school nurses or personnel staffing clinics in correctional facilities. The term “healthcare personnel” includes not only employees of the organization or agency, but also contractors, clinicians, volunteers, students, trainees, clergy, and others who may come in contact with patients."

Healthcare personnel who develop a fever and respiratory symptoms should be:
• Instructed not to report to work, or if at work, to promptly notify their supervisor and infection control personnel/occupational health.
• Excluded from work for at least 24 hours after they no longer have a fever, without the use of fever-reducing medicines.

For more articles on Workers' Compensation and the Flu Pandemic click here.

The Flu: A Compensable Event and Its Complications

Source: US CDC Reports widespread flu activity

For the first time in more than a decade, the seasonal flu is becoming a pandemic  that is causing major business disruptions, and illness and death in the workplace. Despite urgent calls from public health officials and declarations of states of emergency, the flu continues to aversely effect businesses and employees throughout the country.

The laxity amongst employers and employees in getting flu vaccinations, a lack of paid sick days, a shortage of medicine to treat the flu and consequences occurring because of poorly designed vaccination programs, may stretch the nations workers' compensation system to new limits.

Take time to get a flu vaccine.

• CDC recommends a yearly flu vaccine as the first and most important step in protecting against flu viruses.
• While there are many different flu viruses, a flu vaccine protects against the three viruses that research suggests will be most common. (See upcoming season’s Vaccine Virus Selection for this season’s vaccine composition.)
• Everyone 6 months of age and older should get a flu vaccine as soon as thecurrent season's vaccines are available.
• Vaccination of high risk persons is especially important to decrease their risk of severe flu illness.
• People at high risk of serious flu complications include young children,pregnant women, people with chronic health conditions like asthma, diabetes or heart and lung disease and people 65 years and older.
• Vaccination also is important for health care workers, and other people who live with or care for high risk people to keep from spreading flu to high risk people.
• Children younger than 6 months are at high risk of serious flu illness, but are too young to be vaccinated. People who care for them should be vaccinated instead.

Take everyday preventive actions to stop the spread of germs.

• Try to avoid close contact with sick people.
• If you are sick with flu-like illness, CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.)
• While sick, limit contact with others as much as possible to keep from infecting them.
• Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
• Wash your hands often with soap and water. If soap and water are not available, use an alcohol-based hand rub.
• Avoid touching your eyes, nose and mouth. Germs spread this way.
• Clean and disinfect surfaces and objects that may be contaminated with germs like the flu.
• See Everyday Preventive Actions  [257 KB, 2 pages] andNonpharmaceutical Interventions (NPIs) for more information about actions – apart from getting vaccinated and taking medicine – that people and communities can take to help slow the spread of illnesses like influenza (flu).

Take flu antiviral drugs if your doctor prescribes them.

• If you get the flu, antiviral drugs can treat your illness.
• Antiviral drugs are different from antibiotics. They are prescription medicines (pills, liquid or an inhaled powder) and are not available over-the-counter.
• Antiviral drugs can make illness milder and shorten the time you are sick. They may also prevent serious flu complications. For people with high risk factors  [702 KB, 2 pages], treatment with an antiviral drug can mean the difference between having a milder illness versus a very serious illness that could result in a hospital stay.
• Studies show that flu antiviral drugs work best for treatment when they are started within 2 days of getting sick, but starting them later can still be helpful, especially if the sick person has a high-risk health or is very sick from the flu. Follow your doctor’s instructions for taking this drug.
• Flu-like symptoms include fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills and fatigue. Some people also may have vomiting and diarrhea. People may be infected with the flu, and have respiratory symptoms without a fever.

Read more sbout the "flu" and workers' compensation:

Laboratory Workers and Contacts Warned of Accidental Flu Pandemic

Oct 23, 2012

Laboratory Workers and Contacts Warned of Accidental Flu Pandemic. Safety in the laboratory workplace is of critical concern as many research laboratory employees suffer from exotic diseases that become workers' ...

http://workers-compensation.blogspot.com/

 

Workers' Compensation: Compensating Adverse Flu Vaccine ...

Oct 24, 2009

As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in ...

http://workers-compensation.blogspot.com/

 

Workers' Compensation: OSHA Sets H1N1 Flu Employer ...

Nov 27, 2009

The OSGA directive closely follows the prevention guidance issue by The Centers for Disease Control (CDC) to prevent the spread of H1N1 flu. The purpose of the compliance directive is "to ensure uniform procedures when ...

http://workers-compensation.blogspot.com/

 

The Urgent Need for Workers Compensation Flu Pandemic Planning

Sep 15, 2009

The 2009 influenza pandemic (flu) has created a new framework of acts and regulations to respond the World Health Organization's (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting ...

http://workers-compensation.blogspot.com/

The Urgent Need for Workers Compensation Flu Pandemic Planning

The 2009 influenza pandemic (flu) has created a new framework of acts and regulations to respond the World Health Organization’s (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting from regulatory work disruptions to prevent the spread of disease maybe massive. While workers’ compensation was envisioned as a summary and remedial social insurance program, the challenges facing the workers’ compensation system to deliver benefits as promised may be seriously burdened.

There has been a global reaction to the 2008 influenza pandemic. On April 25, 2009, the WHO director-General Dr. Margaret Chen declared the H1N1 virus outbreak as a “Public Health Emergency of International Concern.” The international declaration indicated that a coordinated international response was potentially necessary to prevent curtail the spread of the disease that was perceived as a public health risk. Recommendations to restrict both trade and travel may follow.

The United States has structured its response on both a State and Federal level to the 2009 influenza alert. The Public Health Service Act (PHS) permits the Secretary of Health and Human Service (HHS) to access a special emergency fund, allows or the use of unapproved medical treatments and tests, and allows waiver of certain reimbursement of Medicare and Medicaid expenses, and waives penalties and sanctions for violation of the HIPAA Privacy Rule requirements. Additionally, the President may issue an emergency declaration under The Stafford Act to co-ordinate emergency relief under State and Federal programs, ie. use and distribution of anti-viral medications.

The Federal government has sweeping powers under the PHS that could disrupt employment throughout the country. Recommendations for school closings will impact children and staff well beyond the approximate 700 facilities that were closed in the Spring of 2009 during the H1N1 initial outbreak. The Federal government under the PHS has authority to quarantine (interstate and border) and to isolate. An Executive Order (E.O. 13375, April 2005) enumerates the “quarantainable diseases.” Travel restrictions may be imposed to limit the spread of a communicable disease. Employees may not be permitted to board flights under either voluntary airline restrictions or through the Federally imposed “Do Not Board” lists.

These closings and restrictions have raised issues as to what programs, if any, will be able to provide benefits to the employees because of the involuntary nature of the closings and disruptions. A recent Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there is an outbreak. The workers’ compensation system could be requested to provide temporary disability benefits for occupational disease absences on a massive scale never before experienced. Pre-emption by superseding emergency regulatory actions may curtail employment that will trigger the implementation of State workers’ compensation benefits. The employer and the workers’ compensation insurance carriers will be required to pay temporary disability and medical benefits as a direct consequence of efforts to prevent the spread of a communicable disease. The carefully crafted employee-employer notification structure integrated into the workers’ compensation system may be partially or entirely disrupted by the consequences and chaos of the global health emergency.

Workers’ Compensation claims arising out of the influenza pandemic of 2009 will need to fit into the convoluted framework statutory acts and regulation. Reimbursement from the usual collateral third-party reimbursement sources may be restricted. In addition to the Doctrine of Sovereign Immunity, enjoyed by the Federal and State governments, other legislation including The “Public Readiness and Emergency Preparedness Act" (PREP Act) limits liability of others under certain specific emergency circumstances.

The enormity of the Pandemic presents a new and novel challenge to the system and one that must be considered by both Federal and State planners. Workers’ Compensation programs have adapted to emergencies before including natural disasters and terrorist attacks. The urgency of the situation requires that the system be vaccinated now.

For more articles on Workers' Compensation and the Flu Pandemic click here.

HIPPA Privacy Modifications Under Presidential Emergency H1N1 Flu Order

Under the emergency declaration for H1N1 flu signed by President Obama on October 24, 2009, the HIPPA Privacy rule is not waived according to Federal HHS interpretation; however, "the Secretary of HHS may waive certain provisions of the Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act."
 
Those modifications are:
 
"If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule:

•  the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b)) 
• the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a)) 
• the requirement to distribute a notice of privacy practices (45 CFR 164.520) 
• the patient's right to request privacy restrictions (45 CFR 164.522(a)) 
• the patient's right to request confidential communications (45 CFR 164.522(b)) 

"If the Secretary issues such a waiver, it only applies:

1. In the emergency area and for the emergency period identified in the public health emergency declaration.

   2. To hospitals that have instituted a disaster protocol.  The waiver would apply to all patients at such hospitals.

   3. For up to 72 hours from the time the hospital implements its disaster protocol.

"When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol. 

"Regardless of the activation of an emergency waiver, the HIPAA Privacy Rule permits disclosures for treatment purposes and certain disclosures to disaster relief organizations. For instance, the Privacy Rule allows covered entities to share patient information with the American Red Cross so it can notify family members of the patient’s location.  See 45 CFR 164.510(b)(4)."

Similar rule modifications were invoked during the Katrina disaster.

To read more about medical record privacy and workers' compensation, click here.

CDC Issues A Safety Alert For Laboratory Workers

The safety of laboratory workers involved in testing for the Swine Flu Virus (H1N1 Influenza Virus) is the subject of a alert issued by the US Centers for Disease Control (CDC). The guidance is aimed at laboratory workers who may be processing or performing diagnostic testing on clinical specimens from patients with suspected H1N1 influenza virus infection, or performing viral isolation.

Contagion in The Workplace: Ready or Not

The recent scientific announcement that scientists have developed an airborne strain of a highly contagious and deadly H5N1 flu virus brings to front burner the issue, once again, of whether the workers' compensation system is ready to respond effectively to a large spread viral  epidemic.

Whether the release is because of an unintentional act, or a terrorist attack, the workers' compensation system has not established a protocol for responding with urgent medical care and an elaborate and expedited medical delivery and benefit system.

Read more: Debate Persists on Deadly Flu Made Airborne (NY Times)

“This research should not have been done,” said Richard H. Ebright, a chemistry professor and bioweapons expert at Rutgers University who has long opposed such research. He warned that germs that could be used as bioweapons had already been unintentionally released hundreds of times from labs in the United States and predicted that the same thing would happen with the new virus.

“It will inevitably escape, and within a decade,” he said.

.....

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

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• The Urgent Need for Workers Compensation Flu Pandemic Planning (workers-compensation.blogspot.com)
• New Swine-Origin Flu Cases Reported (medpagetoday.com)
• How Hard Would It Be For Avian Flu To Spread (nytimes.com)
• The Top 10 Workers' Compensation Blog Posts for 2011 (workers-compensation.blogspot.com)
• Comp Maybe Going Viral in Florida Over Dengue Fever (workers-compensation.blogspot.com)
• OSHA Sets H1N1 Flu Employer Responsibility Standard for Health Care Workers (workers-compensation.blogspot.com)
• Compensating Sick Workers at Home with H1N1 Flu (workers-compensation.blogspot.com)
• CDC Reports Flu Widespread - Is the US Workers’ Compensation System Ready? (workers-compensation.blogspot.com)
• Food-contamination responses, resistant E coli in raw chicken, H5Ns in Vietnam (cidrap.umn.edu)
• Contagion: The Movie