Can an Employer be Sued for Not Notifying Employees of a Tuberculosis Exposure?

Full Question:

My employer knowingly allowed fellow instructors and students to be exposed to TB. Four students so far from class of 36 are positive for TB exposure and one instructor. The first positive case was student exposed at hospital during instruction. That was 6 mo ago, incident was documented and he continued to attend class and clinic. Now 5 are positive. I am awaiting my results, had respiratory symptoms for 2-3 months, just lost my baby at 12 weeks unexpectedly. Awaiting my TB test results. Is the employer negligent? No testing occurred at time of initial exposure, just discovered all this info 2 weeks ago.. Also, I am having pathology/genetics on baby remains, results next week.
03/03/2010   |   Category: Negligence   |   State: California   |   #21236

Answer:

When a person fails to fails to uphold a duty of care and that lack of care is the cause of foreseeable harm to another, that person may be found liable for damages due to negligence. Negligence claims require the plaintiff to show the defendant owed a duty of care, that duty was not upheld, and that failure of care caused a foreseeable harm. The answer will depend on all the circumstances involved, such as the applicable school policy and whether the infected person was being treated. We are prohibited from giving a legal opinion, as this service provides information of a general legal nature. I suggest contacting a local attorney who can review all the facts and documents involved.

In negligence cases, the most difficult issue to prove is often causation. In cases of illness, other causes of the illness need to be ruled out. Expert testimony of doctors and others may be used to prove the cause of the damage. It would need to be shown that the damage was the result of the defendant's actions or lack of care, and that there were not other causes or contributing factors which would entirely or partly relieve the defendant of liability.

Information from the American Pulmonary Association states, "It is not easy to contract an infection of tuberculosis." Usually, a person must have close contact with the infected person for a substantial length of time. Active tuberculosis can be prevented with the use of proper medication.

As potential incubators of communicable diseases, especially those to which children are susceptible, schools have a role to aid in the control of disease and infestations and to protect children and employees from illness. Each school board may adopt a formal policy on this subject for the superintendent to implement. Such policies may direct that school physicians and other personnel report to the Board of Health or Department of Human Services (DHS), certain communicable diseases designated as “notifiable” so that public health measures can be taken to prevent large outbreaks among children and others.

If the local health department needs to conduct a contact investigation in the school, it will make the judgment about who else may need to know of the TB case (CDC, 2000).

You cannot contract TB from a person during school-based (Directly Observed Therapy) DOT. A person with active disease should not be in school until a clinician determines that he/she
is non-infectious.

For further information, please see:

http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5415a1.htm
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=13717
http://ors.uchc.edu/ehs/tbpolicy2006.htm

Please see the following CA statutes:

121362 Health & Safety

Each health care provider who treats a person for active
tuberculosis disease, each person in charge of a health
facility, or each person in charge of a clinic providing
outpatient treatment for active tuberculosis disease shall
promptly report to the local health officer at the times
that the health officer requires, but no less frequently
than when there are reasonable grounds to believe that a
person has active tuberculosis disease, and when a person
ceases treatment for tuberculosis disease. Situations in
which the provider may conclude that the patient has ceased
treatment include times when the patient fails to keep an
appointment, relocates without transferring care,
or discontinues care. The initial disease notification report
shall include an individual treatment plan that includes the
patient's name, address, date of birth, tuberculin skin test
results or the results of any other test for tuberculosis
infection recommended by the federal Centers for Disease
Control and Prevention and licensed by the federal Food and
Drug Administration, pertinent radiologic, microbiologic,
and pathologic reports, whether final or pending, and any
other information required by the local health officer.
Subsequent reports shall provide updated clinical status and
laboratory results, assessment of treatment adherence, name
of current care provider if the patient transfers care, and
any other information required by the local health officer.
A facility discharge, release, or transfer report shall
include all pertinent and updated information required by
the local health officer not previously reported on any
initial or subsequent report, and shall specifically include
a verified patient address, the name of the medical provider
who has specifically agreed to provide medical care,
clinical information used to assess the current infectious
state, and any other information required by the local
health officer. Each health care provider who treats a
person with active tuberculosis disease, and each person in
charge of a health facility or a clinic providing outpatient
treatment for active tuberculosis disease, shall maintain
written documentation of each patient's adherence to his
or her individual treatment plan. Nothing in this section shall
authorize the disclosure of test results for human
immunodeficiency virus (HIV) unless authorized by Chapter 7
(commencing with Section 120975) of Chapter 8 (commencing
with Section 121025) of, and Chapter 10 (commencing with
Section 121075) of Part 4 of Division 105.

In the case of a parolee under the jurisdiction of the
Department of Corrections and Rehabilitation, the local
health officer shall notify the assigned parole agent, when
known, or the regional parole administrator, when there are
reasonable grounds to believe that the parolee has active
tuberculosis disease and when the parolee ceases treatment
for tuberculosis. Situations where the local health officer
may conclude that the parolee has ceased treatment include
times when the parolee fails to keep an appointment,
relocates without transferring care, or discontinues care.

121362 Health & Safety

Each health care provider who treats a person for active
tuberculosis disease, each person in charge of a health
facility, or each person in charge of a clinic providing
outpatient treatment for active tuberculosis disease shall
promptly report to the local health officer at the times
that the health officer requires, but no less frequently
than when there are reasonable grounds to believe that a
person has active tuberculosis disease, and when a person
ceases treatment for tuberculosis disease. Situations in
which the provider may conclude that the patient has ceased
treatment include times when the patient fails to keep an
appointment, relocates without transferring care,
or discontinues care. The initial disease notification report
shall include an individual treatment plan that includes the
patient's name, address, date of birth, tuberculin skin test
results or the results of any other test for tuberculosis
infection recommended by the federal Centers for Disease
Control and Prevention and licensed by the federal Food and
Drug Administration, pertinent radiologic, microbiologic,
and pathologic reports, whether final or pending, and any
other information required by the local health officer.
Subsequent reports shall provide updated clinical status and
laboratory results, assessment of treatment adherence, name
of current care provider if the patient transfers care, and
any other information required by the local health officer.
A facility discharge, release, or transfer report shall
include all pertinent and updated information required by
the local health officer not previously reported on any
initial or subsequent report, and shall specifically include
a verified patient address, the name of the medical provider
who has specifically agreed to provide medical care,
clinical information used to assess the current infectious
state, and any other information required by the local
health officer. Each health care provider who treats a
person with active tuberculosis disease, and each person in
charge of a health facility or a clinic providing outpatient
treatment for active tuberculosis disease, shall maintain
written documentation of each patient's adherence to his
or her individual treatment plan. Nothing in this section shall
authorize the disclosure of test results for human
immunodeficiency virus (HIV) unless authorized by Chapter 7
(commencing with Section 120975) of Chapter 8 (commencing
with Section 121025) of, and Chapter 10 (commencing with
Section 121075) of Part 4 of Division 105.

In the case of a parolee under the jurisdiction of the
Department of Corrections and Rehabilitation, the local
health officer shall notify the assigned parole agent, when
known, or the regional parole administrator, when there are
reasonable grounds to believe that the parolee has active
tuberculosis disease and when the parolee ceases treatment
for tuberculosis. Situations where the local health officer
may conclude that the parolee has ceased treatment include
times when the parolee fails to keep an appointment,
relocates without transferring care, or discontinues care.

§ 121485 Health & Safety

(a) If the local health officer determines that persons seeking
first admission to any private or public elementary or secondary
school or institution are reasonably suspected of having
tuberculosis and further determines that the examination of the
persons for tuberculosis is necessary for the preservation and
protection of the public health, he or she may issue an order
requiring the persons to undergo a tuberculosis examination.

(b) If an order has been issued pursuant to subdivision (a), the
governing authority shall not unconditionally admit any person
subject to the order as a pupil of any private or public elementary
or secondary school, or institution, unless prior to his or her first
admission to that institution, he or she provides evidence to the
institution of a certificate showing that he or she is free
of communicable tuberculosis.

(c) Thereafter, any such pupil may be required to undergo the
tuberculosis examinations and provide another certificate showing
that he or she is free of communicable tuberculosis, if the local
health officer orders the examination.

§ 121525 Health & Safety

(a) Except as provided in Section 121555, no person shall be
initially employed by a private or parochial elementary
or secondary school, or any nursery school, unless that person
produces or has on file with the school a certificate
showing that within the last 60 days the person has been
examined and has been found to be free of communicable
tuberculosis.

(b) Thereafter, those employees who are skin test negative,
or negative by any other test for tuberculosis recommended
by the federal Centers for Disease Control and Prevention
(CDC) and licensed by the federal Food and Drug
Administration (FDA), shall be required to undergo the
foregoing examination at least once each four years, or more
often if directed by the school upon recommendation of the
local health officer, for so long as the employee remains
test negative by any test for tuberculosis infection that
has been recommended by the CDC and licensed by the FDA.
Once an employee has a documented positive tuberculin test
or any other test for tuberculosis infection that has been
recommended by the CDC and licensed by the FDA, the
foregoing examination is no longer required, and a referral
shall be made within 30 days of completion of the
examination to the local health officer to determine the
need for followup care.

(c) At the discretion of the governing authority of a
private school, this section shall not apply to employees
who are employed for any period of time less than a school
year whose functions do not require frequent or prolonged
contact with pupils. The governing authority may, however,
require the examination and may as a contract condition
require the examination of persons employed under contract
if the governing authority believes the presence of the
persons in and around the school premises would constitute a
health hazard to students.

(d) The governing authority of a private school providing
for the transportation of pupils under authorized contract
shall require as a condition of the contract that every
person transporting pupils produce a certificate showing
that within the last 60 days the person has been examined
and has been found to be free of communicable tuberculosis,
except that any private contracted driver who transports
pupils on an infrequent basis, not to exceed once a month,
shall be excluded from this requirement.

(e) The examination attested to in the certificate required
pursuant to subdivision (d) of this section shall be made
available without charge by the local health officer.

"Certificate," as used in this chapter, means a document
signed by the examining physician and surgeon who is
licensed under Chapter 5 (commencing with Section 2000)
of Division 2 of the Business and Professions Code, or a notice
from a public health agency or unit of the Tuberculosis
Association that indicates freedom from active tuberculosis.

(f) Nothing in this section shall prevent the governing
authority of a private, parochial, or nursery school, upon
recommendation of the local health officer, from
establishing a rule requiring a more extensive or more
frequent examination than required by this section.