By James L. Curtis, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Health care providers are increasingly called upon to address drug resistant medical cases such as Candida auris (C. auris), an emerging multidrug-resistant fungus that presents a serious health threat to health care employees.  Health care employers need to ensure that employees are being adequately protected from potential hazards, such as C. auris.

News sources are reporting mysterious infections appearing at hospitals around the world of C. auris, a drug-resistant fungus.  Nearly 600 cases of C. auris have been reported in the United States, with the majority of them in New York, New Jersey, and Illinois. Some strains of the fungus are resistant to all major antifungals.

The Centers for Disease Control and Prevention (CDC) alerted health care providers and laboratories in the United States to be aware of the new disease threat that may cause serious or fatal infection, and it can strike people in the very place care may be sought―health care facilities, including hospitals, nursing homes, and other clinical settings.  C. auris can be challenging to identify. Standard laboratory tests sometimes misidentify it as another yeast, but Advanced Molecular Detection (AMD) can pinpoint the fungus and provide information to help understand how it is evolving and spreading.

CDC is concerned about C. auris for three primary reasons:

  1. It is often multidrug-resistant, meaning that it is resistant to multiple antifungal drugs commonly used to treat C. auris infections.
  2. It is difficult to identify with standard laboratory methods, and it can be misidentified in labs without specific technology.  Misidentification may lead to inappropriate management.
  3. It has caused outbreaks in health care settings.  For this reason, it is important to quickly identify C. auris in a hospitalized patient so that health care facilities can take special precautions to stop its spread.

The notable liabilities for employers include:

OSHA: Health care and laboratory employers have a general duty to protect their employees from recognized hazards in the workplace, including potential exposures to this new drug-resistant fungus.  While OSHA has no specific regulation relating to C. auris exposure, it can utilize its “General Duty Clause” (Section 5(a)(1)), to regulate a recognized health hazard which can cause serious injury or death.  The Firm has participated in OSHA inspections responding to employee complaints concerning C. auris exposure.  The agency has issued information to employers on how to respond.  OSHA can issue citations with monetary penalties for such hazards.

Worker’s Compensation: If an employee can prove exposure to mold and causation of the adverse health affect in the workplace, worker’s compensation liability may exist.  This liability can include disability benefits and medical treatment expenses.

ADA: In addition, if an employee can prove that s/he has a “disability” (e.g., impairment of a major life activity, such as breathing) which is negatively affected by exposure to mold, the employer may have a duty to “accommodate” the employee by reassignment to a position where there will not be such exposure, or other means, such as ventilation or remediation.  Failure to make such an accommodation may result in a charge of employment discrimination.

FMLA:  If an employee is unable to work because of a serious illness that results from exposure and the employee is otherwise qualified s/he may also have the right to take unpaid medical leave under the FMLA.

In order to avoid or reduce potential liability for exposure claims, health care employers must take action to train employees and prevent exposure to C. auris.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.