How Do I Respond?

My Risky Business article in the August issue of JDT Unbound dealt with issues surrounding an employer being made aware of an employee’s Hepatitis status and how the employer should handle that information internally.  Another issue to be dealt with by the employer in this situation is the employer’s responsibility to the public when patients are allowed to enter the dental laboratory for shade taking and/or other services.  Below are three issues that I asked the firm of Fisher & Phillips LLP to address.

I. If a dental laboratory owner learns that an employee is infected with a blood borne pathogen (e.g., HBV, HCV or HIV), does the owner have a duty to disclose that information to the dental practice it does business with and/or the dental practices’ patients?

There are no federal laws that require dental laboratory owners to inform dentists or patients that an employee is infected with a blood borne pathogen.  In fact, if an employer learns that an employee has an infectious disease from a secondary source, and the information is false, the employer could become the subject of a defamation claim if it discloses the information.  Laboratory owners should consult state laws for any requirements they may impose on employers in this situation.

II. How should a dental laboratory respond if it learns that an employee has an infectious disease?

In some states, dentists send patients directly to laboratories for various procedures and laboratory workers have direct contact with patients’ mouths.  According to the Centers for Disease Control and Prevention, exposure to infected blood can result in transmission from the laboratory workers to the patients and vice versa although such transmission is rare.  The issue many laboratory owners face is whether the laboratory should limit the infected employees’ contact with patients and how to implement the limitation.

The Americans with Disabilities Act prohibits an employer from discriminating against disabled individuals in regard to the terms or conditions of employment if the individual is qualified to perform the essential functions of the job with or without reasonable accommodation that is not an undue hardship on the employer.  However, employers are not required to employ an individual with a disability who poses a direct threat to the health and safety of himself/herself or others and who cannot perform the job at a safe level even with reasonable accommodation.  This is a very narrow exception on which the company will bear the burden of proof.  In light of the fact that the ADA contemplates that each situation be analyzed on a case-by-case basis, we suggest consulting with an attorney to determine the appropriate course of action.  In addition, employers should consult state laws to ensure compliance with requirements they may impose on an employer.  Further, employers may consider contacting an infectious disease specialist for assistance in making employment-related decisions regarding infected employees.  

III. What steps can dental laboratories and dental practices take to ensure that materials are properly disinfected before the patient is exposed to limit the risk of infection or disease?

Dental laboratories and dental practices frequently rely on one another to take appropriate measures to disinfect materials that are transported from one facility to the other.  However, lack of communication or misleading information on disinfection can lead to patient exposure to contaminated materials.  According to the Guidelines for Infection Control in Dental Health-Care Settings, “dental prostheses, appliances, and items used in their fabrication (e.g., impressions, occlusal rims, and bite registrations) are potential sources for cross-contamination.  Effective communication and coordination between the laboratory and dental practice will ensure that appropriate cleaning and disinfection procedures are performed in the dental office or laboratory...” Accordingly, in order to limit potential liability and to avoid harm to the patient, we suggest that both the laboratory and the dental practice have an understanding of which facility will be responsible for disinfecting the material; the exact measures used for disinfection; the procedures for labeling material as disinfected or not disinfected; and how the packing process is implemented.         

Information contained in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only and you are urged to consult counsel concerning your own situation and specific legal questions you may have.  Fisher & Phillips LLP lawyers are available for presentations on a wide variety of labor and employment topics.

For more information or legal assistance go to:

http://www.cdc.gov/

http://www.osha.gov/

http://www.laborlawyers.com/

http://www.safelink.com/

Tracy L. Moon Jr. and Janine Toner with Fisher and Phillips LLC contributed to this article.