By Adam R. Young

Seyfarth Synopsis:  Employers are widely installing AEDs to protect employees and visitors, but some states require strict compliance with AED regulations to insulate employers from tort liability.

Employers are Installing AEDs

Reports indicate that over 350,000 Americans suffer from sudden cardiac arrest each year, and approximately 95% of sudden cardiac arrest victims die before reaching the hospital. The majority who receive a defibrillation shock within four minutes of the event survive.  Perhaps based in part on this data, federal and state laws have mandated the installation of Automated External Defibrillators (AEDs) in public and government buildings.  Employers across the United States are installing AEDs to protect their employees, customers, and visitors.  Many employers are promoting the business case for installing AED devices, particularly as key management employees across the workforce age and become statistically more likely to suffer such an event.

Tort Liability

Plaintiffs’ lawyers consistently seek new ways to sue American businesses, especially with regard to novel tools for medical treatment.  Adding AEDs at your workplace can have the unintended effect of new liabilities — tort liabilities based on an employees’ (1) failure to use the AED when an employee suffers a sudden cardiac arrest, or (2) failure to administer aid with the AED properly.

Imagine: your company has purchased an AED.  A visiting customer suffers a cardiac arrest event and your employees scramble to retrieve the AED.  Your employee calls 911 and uses the AED as he waits for paramedics to arrive.  Unfortunately, the customer goes into a coma and passes away two days later.  One year later, you learn that the late customer’s estate has sued the Company and you personally, alleging that you and the Company have been negligent in installing the AED and allowing an employee to operate it “improperly.”

Limited Civil Immunity

Most states have passed laws making employers immune for lawsuits related to the provision or omission of care with an AED.  However, many of those laws, such as the Illinois AED Act, only provide immunity if the employer complies with each and every requirement in each statute’s laundry list of AED rules.  Some examples of these mandatory rules include:

  • Training Requirements — anticipated rescuers need to be properly trained by certified instructors. Rescuers and instructors needs to be retrained periodically.
  • Settings and Maintenance — employers must select AEDs from an approved government list. AEDs must be set in the appropriate modes. They must be properly maintained and tested.
  • Notification — Employers must notify the proper authorities with specific data on their AEDs. After use in a medical emergency, employees must activate the emergency response system.

Limited Room for Error

The bullets above are examples of common requirements under state AED laws.  Recent case law in Illinois, for instance, provides that if employers fail to comply with any single AED requirement, they could lose all immunity from negligence claims. Accordingly, courts have ruled that Illinois employers must comply with all training and notification requirements, or they face potential lawsuits related to employees’ misuse of AEDs.

All 50 states have their own requirements, which may vary considerably.  Employers should consult with legal counsel to ensure that they comply with their state’s AED laws.

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

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We continue to attend the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.

A hot topic, discussed at today’s meeting, is sexual harassment in the workplace.  Panelists are discussing whether sexual harassment could constitute a serious workplace safety and health issue.  Studies show that pervasive harassment may manifest in physical symptoms in victimized employees.  The question becomes, when does sexual harassment evolve into workplace violence that presents OSHA liability?  There are currently no specific OSHA standards that address workplace violence or sexual harassment.  However, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.”  As such, sexual harassment is on OSHA’s radar, and as more employees step forward, it is anticipated that more inspections will be opened from complaints.

The panel discussed specific industries, including healthcare, social services, hospitality, late night retail, construction, agriculture, and food processing, as those where sexual harassment as a workplace violence issue are statistically more likely.  OSHA will likely focus on these industries in evaluating future sexual harassment inspections.  As an example, the panel referenced a case in Region 3, where an inspection was opened when a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  Companies should evaluate complaints and determine if sexual harassment in the workplace is foreseeable or preventable.

The panel also talked about efforts by local cities and industries that have made proactive steps to protect employees from sexual harassment.  As an example, Seattle, New York, and Chicago have all taken steps to provide hotel workers with “panic buttons” to help prevent attacks by hotel guests.  It is anticipated that these regulations will spread across the country, and span new industries as well.  Employers should stay aware of the newest regulations and industry practices to reduce the risk that employees will be harmed or that an OSHA inspection will be opened.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By James L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Healthcare is the fastest-growing sector of the U.S. economy, employing over 18 million workers, 80% of which are women.  These healthcare workers face numerous hazards on the job, including sharps injuries, exposures to chemicals and hazardous drugs, musculoskeletal disorders (MSDs), latex allergy, violence, and stress.

Significantly, there are more cases of healthcare workers suffering nonfatal occupational injury and illnesses than any other industry sector.  In a recent healthcare study, NIOSH found that as to administering aerosolized pentamidine to patients “22% of respondents did not always wear protective gloves, 69% did not always wear protective gowns, and 49% did not always wear respiratory protection….”  NIOSH concluded that there was “a belief that employers do not fully appreciate the potential adverse health effects associated with exposure to these drugs and therefore do not prioritize adherence.”

As to high-level disinfectants, the survey findings showed that best practices to minimize exposure have not been universally implemented.  NIOSH’s survey found that “17% of respondents said they never received training and, of those who received training, 42% said that it was more than 12 months ago.  19% of respondents said that employer safe handling procedures were unavailable.”  “44% of respondents did not always wear a protective gown and 9% did not always wear protective gloves.”

Critically, NIOSH concluded that employers and employees did not always follow best practices.

For healthcare employers this conclusion should be a red-flag as to the overall quality of their safety and health policies.  Healthcare employers should consult with safety professionals who are well versed in the areas where the employers may be out of touch with best practices.  Such consultations can enhance employee safety and help avoid liabilities associated with OSHA violations.

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