Latex allergies in the lab: What are your legal rights?
When latex allergy strikes, it can be disabling. People who are sensitized to natural rubber latex experience symptoms ranging from sneezing, watery eyes, and dermatitis to abdominal cramping, asthma, and anaphylaxis. Because there is no cure for the ailment; they may also find it necessary to live with severe restrictions--even being in the same room with a single latex balloon might trigger symptoms.
Worse, from a laboratory professional's perspective, a staff member may be unable to work in the presence of latex products, such as protective gloves, IV tubing, syringes, and tourniquets. Indeed, because of repeated exposure to latex gloves at work, it is estimated that as many as 1 in 10 healthcare workers are latex sensitive.  While these numbers could be disputed, there is little doubt that healthcare workers are at greater risk than the general population.
Despite reports of severe reactions to latex since the late 1980s, the Food and Drug Administration only recently began requiring manufacturers to put allergy warnings on products or packaging that contain latex and prohibiting them from mislabeling these products as "hypoallergenic." Although some states have recently considered banning or limiting the use of latex products among healthcare providers, none have done so yet. The situation may soon change, however. In one of the strongest moves taken against latex in the northeast, Rhode Island Attorney General Sheldon Whitehouse has written a resolution recommending that the state health department regulate the use of latex in the healthcare, food service, and day care industries, as reported online by The New York Times. The attorney general is asking hospitals, restaurants, and manufacturers to discontinue using latex gloves. 
Given the lack of comprehensive protection, it's important that you take the time to find out what you are entitled to if latex allergy disrupts your or one of your staff member's ability to live and work as usual. You can take steps to reduce the risk of becoming latex sensitive and develop ways to prevent liability if someone on your staff suffers from this ailment.
How to protect yourself
If you suspect you are allergic to latex, seek medical attention at once. If you are diagnosed as having a mild latex allergy, medication might be enough to manage your symptoms. If your condition is severe, however, you may have to avoid all latex products and areas where the protein allergens are air- borne. This often occurs when a laboratory worker removes a latex glove in one swift movement, creating a snapping sound, which causes the packaging powder to become airborne. While the gloves are in use, antigens can fasten themselves to this powder. In this fashion, latex is released into the air we breathe--one need not even be wearing latex gloves to be exposed to the protein and exhibit symptoms.
A good first step to take after being diagnosed with latex allergy is to start wearing a medical alert bracelet. It's also important that you inform your employer of your illness as soon as possible. Doing so helps ensure that any healthcare or legal claims you make will not be denied because of untimely notification. Then, you should consider your legal options. Here is a review of the primary ones.
Workers' compensation. There has been no definitive statement indicating that latex allergy is a compensable, work-related injury. However, in some cases, symptomatic employees have received workers' compensation benefits. On the other hand, coverage has been denied in some cases.
In general, whether you will be covered by workers' compensation depends on the state you are working in and the specific facts of your case. Most laboratory workers are covered by state comp laws; among the exceptions are independent contractors. In a few states, those who work for laboratories with a small number of employees, say fewer than 4, may not be covered.
If you are covered, workers compensation laws provide medical benefits for occupational injuries as long as treatments are approved by your employer's workers' compensation carrier. To ensure coverage, make certain you keep complete records of each time you develop a latex-related symptom, no matter how small or insignificant you think the symptom is. Also, keep notes about any care you receive, including doctor's visits and laboratory results.  Finally, remind your physician that your situation is a workers' compensation case and that he or she should send the required paperwork to your employer's workers' compensation carrier.
Keeping careful records will also help you obtain coverage. A requirement of most workers' compensation plans is that you prove your condition is occupational in nature. In other words, you must prove by a preponderance of evidence that the allergy would not have developed had you not been doing your job. To do this, you need a detailed record of your symptoms worsening on the job.
However, such proof is no guarantee of coverage. Here are 2 examples of states ruling differently in 2 similar cases: A medical technologist working in a hematology laboratory in Missouri began developing an anaphylactic reaction from using latex gloves, and she filed for workers' comp insurance. The insurance company contended that she suffered from latex sensitivity and asthma before her employment, yet a judge still granted her compensation coverage.
On the other end of the spectrum, a Delaware man was not so lucky. Like the laboratory worker, he was exposed to latex at his job because he worked in a tire repair shop. Three months after starting the job, he developed hives. A few days later he had difficulty breathing, was hospitalized, and was diagnosed with latex allergy. He was not allergic to anything before starting the job, except cat dander. Yet, medical experts were able to prove that he was "predisposed" to allergies, and therefore his condition was deemed not occupational in nature.
For those who do qualify for workers' compensation, most state laws guarantee weekly payments of two-thirds of your usual weekly wage. Some states, like Pennsylvania, are not so generous. In that state, if you become permanently disabled and can't return to work, you could receive a flat award based on your lost earning power and any physical and mental limitations. 
If you know you are latex sensitive and fear more serious reactions, you might want to consider obtaining additional disability insurance to guard against the possibility of not being able to return to work. You could purchase your own policy, but that can be expensive. Another option is to ask if your employer offers disability insurance that goes beyond basic coverage. When you apply for additional insurance, be sure to inform the insurer of your allergy. Failing to do so could invalidate the policy.
Americans with Disabilities Act. This federal law prohibits employers with 15 or more workers from discriminating against individuals with disabilities that "substantially limit one or more major life activities." Whether latex allergy meets this test is still unclear. While some legal experts argue that it does because it can limit the ability to work, the ADA does not list latex allergy as a disability per se. However, the Equal Employment Opportunities Commission, the agency charged with enforcing the ADA, has been deciding claims involving this illness on a case-by-case basis.
If you believe that your allergy has rendered you disabled, notify your employer in writing that you need to be accommodated. It's then up to your employer to decide how to accommodate you. Your job may be modified or restructured by, for example, reassigning you to a unit that is latex-free and has a separate ventilation system.
If your employer fails to accommodate you, you can file a charge with the state agency that handles discrimination claims or with the EEOC. (For an EEOC office near you, call 800-669-4000.) You must file your charge within a specific time frame or you'll lose your right to sue your employer. Consult with an employment lawyer to determine the statute of limitations for filing a claim.
Your employer is not required to accommodate a bona fide disability, however, if doing so would cause "undue hardship." For example, an employer doesn't have to create a new position for you. And some would argue that, because of the expense, an institution wouldn't have to create a latex-free workplace.
Lawsuits against manufacturers. If you are covered by workers' comp, you're precluded from suing your employer, but you might want to consult with a products liability attorney about suing a manufacturer. An increasing number of healthcare workers are suing the makers of latex gloves.
These plaintiffs claim that manufacturers cut corners during production, thereby leaving high levels of latex protein in the gloves and increasing the risk of sensitization. They also contend that manufacturers knew about the danger of ongoing latex exposure and tidied to change their production practices or warn users. Manufacturers have denied any liability.
While the vast majority of these cases are pending--with no end in sight--there has been at least one case decided in favor of a healthcare worker. In February 1998, a Milwaukee jury ordered a latex glove manufacturer to pay $1 million to a radiology technician who developed a severe latex allergy, saying that they wanted to send a message to manufacturers to improve the safety of their gloves. [5,6] The case is currently on appeal. Another latex trial is set to go to trial in California. 
How to reduce risk
Of course, the best way to avoid having to take legal action is by decreasing your exposure to latex before it becomes disabling. In 1997, the National Institute for Occupational Safety and Health issued recommendations to minimize the hazards of ongoing latex exposure.  Among the recommendations:
* Use nonlatex gloves when you are not likely to come in contact with infectious materials.
* If you do use latex gloves, use powder-free gloves with reduced protein content.
* Avoid using oil-based hand creams or lotions when wearing latex gloves; these products can cause the glove to deteriorate, thereby releasing additional allergens.
* After removing the gloves, wash your hands with a mild soap and dry them thoroughly.
* Finally, be familiar with the signs and symptoms of latex allergy. (For more on symptoms, see "What you need to know about latex allergy" in the July 2000 issue of MLO, p. 64.)
The phlebotomist's patients
Because most laboratory workers do not come into contact with patients, professional malpractice liability is not a big problem. However, phlebotomists may encounter a latex-sensitive patient. The tourniquets and the rubber gloves can cause an adverse reaction. If a patient is harmed because you exposed him or her to a substance that you knew, or should have known, he or she was allergic to, you may face a malpractice suit. It would be prudent, just before you make the draw, to ask if the patient suffers from latex allergies.
A worst-case scenario would be a patient experiencing severe allergic reactions while you are taking the sample. These symptoms include urticaria (hives), angioedema (swelling), closing of the throat, or difficulty breathing. The patient may become light-headed and appear flushed. These symptoms can quickly proceed to severe anaphylactic shock, hypotension, and collapse.
According to the American College of Allergy, Asthma & Immunology, treatment of an extreme reaction consists of an immediate subcutaneous administration of epinephrine 1:1000 0.3 cc (for children, 1:1000 0.01 mL/kg up to 30 kg), followed by an intramuscular injection of diphenhydramine 50 mg (for children, 1 mg/kg up to 50 kg). If the patient is conscious and wheezy, he or she may be allowed two puffs on a salbutamol (albuterol) inhaler and placed head-down in the Trendelenburg position (eg, supine, head tilted down 30-40 degrees, and the table or bed is angulated beneath the knees). Call for an ambulance immediately or arrange for transfer to an ER. If in doubt about the status of the patient, err on the side of caution and tell emergency workers the patient is experiencing a cardiac arrest. In the meantime, the patient should not be left alone, the airway should be kept clear, and the pulse should be monitored. If necessary, cardiopulmonary resuscitation should be performed. Epinephrine should be administe red every 10 minutes until help arrives.
Once the patient is out of danger, retain the product that you think caused the reaction, if possible, so it can be examined later. This is also necessary under a law called the Safe Medical Devices Act, which requires facilities to report to the FDA incidents in which equipment caused or contributed to a death, illness, or injury. You can also voluntarily report the incident to the FDA's MedWatch program at (800) 332-1088.
Until the day that laboratories become latex-free, natural rubber will continue to be a threat to you and your colleagues. Knowing what your rights are if you become disabled and what duty you have to protect a sensitized patient from exposure helps make this occupational hazard less of a burden to
Peter Kohn, senior associate attorney at Monheit, Monheit, Silverman & Foidera in Philadelphia, PA, represents latex-sensitive healthcare workers in suits against glove manufacturers. Marissa J. Ventura is a staff editor, Medical Economics Company, Montvale, NJ. Frank Celia is a freelance writer located in Ridley Park, PA.
(1.) American Nurses Association. Position statements: Latex allergy. Washington, DC: American Nurses Association; 1997.
(2.) Scott M. A move to banish latex products. http://yourhealthdaily.com. Accessed June 28, 2000.
(3.) Nemeth D. Workers' compensation and latex allergy: Dos and don'ts. J Emerg Nurse. 1997;23(2): 165.
(4.) Mantel DL. If you're injured by a patient. RN 1996;59(11):47.
(5.) Goldstein A. Allergies lead to wave of lawsuits against latex glove manufacturers. The Washington Post. May 9, 1998; A12.
(6.) Marchione M. Health worker receives $1 million in latex case: Verdict likely to affect medical glove lawsuits nationwide, lawyers say. Milwaukee Journal Sentinel. February 26, 1998; 1.
(7.) Gold J. Ask about latex. RN. 1994;57(6):32.
(8.) Andrew's Latex Allergy Litigation Reporter. Court Advises Parties to Prepare for Start of Calif.'s First Latex Trial. April 2000; 6.
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|Author:||Kohn, Peter; Ventura, Marissa J.; Celia, Frank|
|Publication:||Medical Laboratory Observer|
|Date:||Aug 1, 2000|
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