On February 10, 2017, the Tampa Bay Buccaneers (“Bucs”) reached a settlement with former kicker Lawrence Tynes stemming from a lawsuit Tynes filed against the team after he contracted Methicillin-resistant Staphylococcus aureus (“MRSA”). MRSA is an infection caused by a type of staph bacteria that has become resistant to many of the antibiotics used to treat ordinary staph infections.
Tynes filed the lawsuit in April 2015, alleging that he contracted MRSA from the unsanitary conditions at the team’s facility. Specifically, the lawsuit claimed that the Bucs failed to disclose and actively concealed ongoing incidents of the infection among other individuals who used and visited the team’s facilities. The lawsuit also alleged that the team failed to use necessary sterile techniques and routinely left therapy devices, equipment and surfaces unclean. The terms of the settlement are undisclosed.
While concussions have garnered the most attention when it comes to health concerns in the NFL, MRSA has been a significant problem in the NFL as well. Football players are at risk, because the bacteria is spread through direct contact with open wounds and can be spread through the sharing of towels.
Tynes’ lawsuit serves as a reminder to employers of its obligations to maintain a safe worker environment. The Occupational Safety and Health Administration (“OSHA”) requires employers to provide their employees with working conditions that are free of known dangers. Although certain employees, such as athletes, health care workers, police officers, firefighters, veterinarians, and farm workers may be at higher risk of contracting MRSA infections, employees in other industries are not immune.
What Exactly is MRSA?
OSHA provides the following summary about MRSA on the U.S. Department of Labor e-tools website:
Methicillin-resistant Staphylococcus aureus, or MRSA, is a type of staph that is resistant to some antibiotics. MRSA infections occur most frequently among persons in hospitals and other healthcare facilities (such as nursing homes and dialysis centers) who have weakened immune systems. These healthcare-associated MRSA infections include infections of surgical wounds, the urinary tract, bloodstream and lungs (pneumonia). HA-MRSA can also cause illness in persons outside of hospitals and healthcare facilities. MRSA infections that are acquired by persons who have not been recently (within the past year) hospitalized or had a medical procedure (such as dialysis, surgery, the insertion of a catheter) are known as community-associated MRSA infections. CA-MRSA infections are usually manifested as skin infections, such as pimples and boils, and occur in otherwise healthy people. However, some severe CA-MRSA infections have also occurred in healthy individuals.
What Preventative Measures Can an Employer Take?
To create a safe work environment, the CDC offers the following recommendations:
- Show employees you care about worker safety and health protection in the workplace by promoting a culture of safety.
- Ensure the availability of washrooms and hand washing supplies.
- Encourage workers to practice good hand hygiene.
- Ensure the performance of routine workplace housekeeping.
- Ensure the availability of personal protective equipment and first aid supplies.
What Employment Laws Need to Be Considered?
An employee with MRSA may be protected under the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination against a qualified individual with a mental or physical impairment that impairs a major life activity. An individual with MRSA would likely qualify as disabled within the meaning of the ADA if the infection resulted in a serious health impairment. If the employee was covered by the ADA, the employer would have a legal obligation to provide the employee with a reasonable accommodation. The most common accommodation would be in the form of a leave of absence.
An employee with MRSA may also be entitled to 12 weeks of unpaid leave under the Family and Medical Leave Act (“FMLA”), provided the employer is covered by the FMLA. The FMLA only applies to employers that meet certain criteria. A covered private employer has employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer. An eligible employee is one who works for a covered employer, has worked for the employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
