Employee,Contractor,or Student? Four Legal Decisions Illustrate Differences in Laboratory Worker Protections

Abstract

Many laboratory work settings utilize blended staffing, with employees, contractors, and students assigned duties in the same location. Employees and contractors may have identical job titles and duties, and students sometimes perform training-related tasks utilizing the same procedures as employees and contractors. While job titles, duties, and functions across these 3 separate laboratory worker categories may at times be similar or overlapping, obligations of, and protections for, the groups can significantly differ. This article presents examples of 4 legal outcomes regarding laboratory worker responsibilities and protections that are determined by job classification. Prospective explanations of expectations of individual privacy, workplace safety, and compensation benefits for occupational injuries and accidents should be openly provided to all laboratory workers in vacancy announcements, at annual trainings, and in human resource procedural manuals.

Laboratory worker classification—for an employee, contractor, or student—has historically been a significantly relevant factor regarding legal determinations of workplace obligations and protections. Four real-world scenarios—specifically chosen because of their relevancy to work in scientific laboratory settings (biologic and nonbiologic work settings) and each introduced with a query—are provided and accompanied with analyses of the ultimate decision and outcome for the laboratory worker. Although the first 2 case examples in this article pertain to nonbiological laboratories, the US Supreme Court decision and the Occupational Safety and Health Administration (OSHA) jurisdictional determination are applicable to all laboratory workplace settings, including biological laboratories. For purposes of clarification, the term “laboratory worker” includes all individuals working in a laboratory/institution, and the term “employee” refers to those hired by the laboratory/institution.

Scenario 1

Are federal contractors entitled to less intrusive employment background investigations than federal civil servants?

The National Aeronautics and Space Administration (NASA) owns the Jet Propulsion Laboratory (JPL) and has a contract with the California Institute of Technology for the management of the laboratory. After the issuance of post-September 11 security regulations, NASA modified its agreement with the institute to reflect new background check procedures requiring federal contract employees to undergo background investigations. JPL officials informed contract laboratory staff employees that failure to complete the new background investigation process would result in a denial of access to the laboratory and job termination. ¹

Twenty-eight contractors at the JPL filed suit in federal district court, claiming that the investigation process violated their constitutional right to informational privacy. Although the district court denied the plaintiffs’ motion for a preliminary injunction, the Ninth Circuit Court of Appeals reversed the lower federal court’s decision. The reasoning of the appellate court was that the background checks were likely unconstitutional, specifically requiring the disclosure of drug treatment or counseling and reference checking regarding financial integrity, mental stability, and any other open-ended, unspecified matters. ² Additionally, the Ninth Circuit held that the portion of the background investigation requiring admission of drug treatment or counseling did not further any legitimate governmental interest and that open-ended and personal questions for designated references were insufficient to meet the government’s interest in verifying contractors’ identities and guaranteeing the security of the laboratory. The Ninth Circuit also determined that the drug treatment question likely violated the informational privacy rights of the contractors. ³

The Supreme Court disagreed. In a unanimous decision, NASA v Nelson, the Supreme Court overruled the Ninth Circuit’s decision, deciding in favor of NASA and in support of the requirement that contractors fully comply with the required background investigations. The Supreme Court determined that the government’s investigation questions were reasonably related to legitimate purposes and that the confidential information produced by the background investigation was protected by the provisions of the Federal Privacy Act. ⁴ The following quote is from the Supreme Court decision:

Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent workforce.… Respondents argue that, because they are contract employees, and not civil servants, the Government’s broad authority in managing its affairs should apply with diminished force. But the Government’s interest in managing its operations does not turn on such formalities.… The record also shows that, as a practical matter, there are no relevant distinctions between the duties performed by the … civil service workforce and the contractor workforce.… The Government has good reason to ask employees about their recent illegal-drug use. Like any employer, the Government is entitled to have its projects staffed by reliable law-abiding persons who will efficiently and effectively discharge their duties.… The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems.… Asking an applicant’s designated references broad, open-ended questions about job suitability is an appropriate tool for separating strong candidates from weak ones. ²

Scenario 2

Are federal workplace safety protections for employees working in a campus laboratory also applicable to students working in the laboratory?

Michele Dufault was a 22-year-old graduating senior at Yale University, with a double major in astronomy and physics. A high-achieving student, her resume included selection as a fellow at the Woods Hole Oceanographic Institution in Massachusetts, studying underwater robotic vehicles, and inclusion as part of an elite group of undergraduate students selected by NASA to conduct plasma physics research in reduced gravity. ⁵

Working late at night in the university Student Mechanical Instrumentation Shop, located inside a chemistry laboratory, she investigated the potential usage of liquid helium in detecting dark matter particles. Her long hair was caught in a rotating axis lathe; her lifeless body was discovered the next morning by other students working in the laboratory. The Connecticut Office of Chief Medical Examiner found the cause of death to be asphyxia due to neck compression, ruling the death an accident. ⁶

An OSHA fatality investigation was conducted by the Bridgeport Area Office. Because the student was not an employee of the university, OSHA did not have jurisdiction to issue citations or fines for the violations of safe working conditions that were found. Correspondence by OSHA to the university included this extract:

For the USDOL-OSHA to issue citations in an incident, there must be an employer-employee relationship. The affected individual in this incident was a student.… In the interest of work place safety and health, however, I recommend that you take the following steps voluntarily to eliminate or reduce your exposure to the hazards described above. (RW Kowalski, letter, August 15, 2011)

The OSHA area director later acknowledged that if the death had involved an employee or if investigators could determine that the workers were at risk, the university would have been cited for a workplace safety violation. OSHA had issued citations for the same situation in an industrial setting, and if Michele Dufault had been a work-study student, the outcome would have been different. ⁷

Scenario 3

When a federal laboratory worker assigned to a hybrid federal-state university laboratory dies from a fatal laboratory-acquired infection, what legal remedies are available to his survivors?

Richard Din, a 25-year-old microbiologist and recent graduate of the University of California at Berkeley, was hired by the Northern California Institute for Research and Education (NCIRE) as a research associate. By the terms of an agreement between the University of California, San Francisco, and the VA Medical Center, he was considered a federal (Veterans Affairs) employee. His research was conducted in a VA Medical Center laboratory, focusing on the development of a vaccination for Neisseria meningitidis. ⁸

After work on the evening of Friday, April 27, 2012, Din began to feel sick, complaining to his roommates that he had a headache, fatigue, nausea, fever, and chills. The following morning, he awoke with worsening symptoms, including a petechial rash covering his body. He asked his roommates for help, and they drove him to the San Francisco VA Medical Center, where he was employed. ⁹ The attending physician immediately suspected Neisseria meningococcal infection and ordered all staff members to use personal protective equipment. Three hours after his arrival at the hospital, Richard Din died. An autopsy determined that his death was a result of fulminant meningococcal sepsis, with the specific cause of death being “disseminated intravascular coagulation and multisystem organ failure associated with meningococcal sepsis.” ⁸

Subsequent to its investigation, OSHA issued a notice of unsafe and unhealthful working conditions to the San Francisco VA Medical Center. “Richard Din died because the VA failed to supervise and protect these workers adequately, even though they agreed NCIRE workers were covered as VA employees,” said Ken Atha, OSHA’s regional administrator in San Francisco. ¹⁰ The notice consisted of 3 serious violations: (1) failure to require workers to use a safety enclosure when performing microbiological work with a viable bacteria culture; (2) failure to provide training on the signs and symptoms of illnesses as a result of employee exposure to a viable bacteria culture, such as meningitis; and (3) failure to provide available vaccines for workers exposed to bacteria. ¹¹ Because the VA Medical Center is a federal agency, OSHA did not have jurisdiction to impose financial sanctions for safety violations. ¹²

The family of Richard Din (his father and brother) filed a federal civil lawsuit against the federal government, the Regents of the University of California, and 3 federal supervisors. ⁸ The lawsuit claimed $20 million in monetary damages for failure to adequately train, failure to provide inoculations against biologic materials potentially exposed to in the laboratory, failure to train to recognize the possible symptoms present at the onset of an exposure to the N meningitidis, and failure to understand the urgent need for immediate and appropriate medical treatment.

The lawsuit was dismissed. The claims against the individual federal defendants were dismissed on the grounds that their actions were within the scope of their employment with the United States. ¹³ In accordance with federal statutes, when a federal employee named in a tort action is found to be acting within the scope of his or her employment, the United States is substituted as a defendant. With the dismissal of the individual defendants, the claim against the regents was also dismissed.

The claim against the United States was dismissed pursuant to the Federal Employees Compensation Act (FECA; 5 USC 8101, et seq), which provides federal workers compensation for injuries in work-related accidents. The judge held,

The statutory test for coverage is whether the employee was injured “while in the performance of his duty.” … The remedies provided under FECA are exclusive of all other remedies against the United States for job-related injury or death.… FECA contains an “unambiguous and comprehensive” provision barring any judicial review of the Secretary of Labor’s determination of FECA coverage.

The family of Richard Din conceded his federal employment status and ultimately did not appeal the district court’s dismissal of the lawsuit. ¹⁴

The provisions of FECA compensate only the surviving spouse and children of a federal employee fatally injured in the course of his or her employment. As Richard Din was unmarried and without children, no compensation was provided to his father or brother for his death. Although hired by the NCIRE and working in a laboratory jointly administered by the University of California, the legal remedies provided to the family of Richard Din were limited by his status as a federal employee.

Scenario 4

When a state employee conducting a federally controlled experiment in a state laboratory incurs a laboratory-acquired rabies infection, due in part to the negligence of a federal employee, is he or she eligible to recover monetary damages from the United States?

In 1976, Jerome Andrulonis was a 34-year-old senior bacteriologist employed by the New York State Department of Health. While conducting a laboratory experiment, he contracted rabies, incurring severe and permanent injuries, including dementia secondary to rabies encephalitis. The exposure and infection took place in the state-operated Griffin Laboratories, under the immediate supervision of Dr John G. Debbie, a New York State scientist.

The rabies viral strain was provided by Dr George Baer, a federal scientist from the Centers for Disease Control and Prevention (CDC), who also observed the experiment. Dr Baer was the chief of the Viral Zoonosis Branch and Rabies Laboratory at the CDC, and he formally requested that Dr Debbie and his laboratory conduct the experiment. The research was part of a joint effort by New York and the CDC to produce an oral rabies vaccine that could be administered to wildlife in the hope of eradicating the incidence of rabies transmitted to humans.

Because the initial virus strains tested by Dr Debbie were broken down by the stomach acids of some animal species, he decided, upon the advice of Dr Baer, to try a method of enteric coating. In this method, a tablet would be first coated with rabies virus, then a protective coating, and finally a shell that could withstand stomach acids, allowing the virus to be absorbed. The virus would not cause the development of rabies but would cause the body to produce antibodies that would protect the animal against subsequent rabies exposures.

Funding for the experiments was provided by the CDC. During initial operations by the Uni-Glatt enteric coating machine (Frain Industries, Carol Stream, Illinois), heat generation killed most of the viral particles, reducing the titer of the vaccine to 1 (10⁰ viral particles), a level that produced irregular serum antibody levels. To overcome this problem, Dr Debbie asked Dr Baer to prepare a viral strain with a significantly higher titer. Dr Baer then prepared a viral strain, ERA-BHK/21, with a titer of 8.1 (10^8.1 viral particles). The chances of contracting rabies depend on the quantity of viral particles and route of exposure.

Dr Baer was aware that the Uni-Glatt enteric coating machine used by Dr Debbie did not have an airtight seal but did not warn Dr Debbie or Mr Andrulonis. After the new viral strain was delivered, aerosolization took place over the course of an hour, during which time both Dr Debbie and Mr Andrulonis worked in close proximity to the machine. During the experiment, at which time the pills were to be covered with the virus and then covered with an enteric coating, Dr Baer saw pills escape from the Uni-Glatt machine and observed Dr Debbie “patching” the machine with electrical tape. In the course of the experiment, Mr Andrulonis placed his face within 6 to 12 inches from the machine, tapping the feeding tube.

Because the Uni-Glatt machine used to coat the pills was not airtight, Mr Andrulonis was exposed to the rabies virus and developed rabies encephalitis. Although he survived, he incurred severe permanent neurologic damage, leaving him with the mental capacity of a 4-year-old.

Joanna Andrulonis, individually and as conservator of the property of her husband, brought suit against the United States to recover damages for the injuries that they both suffered because of the laboratory-acquired infection. Her initial Federal Tort Claims Act suit, filed on her individual behalf, was denied because the initial administrative claim was not filed in a timely manner. The Andrulonises also brought suit against New York State in tort, and this action failed because New York workers’ compensation law provides the exclusive remedy for occupational injuries.

After appeals to the Second Circuit Court of Appeals and the Supreme Court, the case was ultimately concluded in favor of Jerome Andrulonis. A judgment for Jerome Andrulonis against the United States was entered for $6 424 641, and the United States was permitted to recover $3 700 000 from New York for the state’s proportion of responsibilities in the experiment. ¹⁵

Conclusion

The 4 examples discussed in this article reflect important job classification distinctions in the provision of protections and expectations regarding individual privacy, workplace safety, and compensation benefits for occupational injuries and accidents.

The Supreme Court’s refusal to recognize distinctions among laboratory worker job classifications regarding background investigations removed any ambiguity that contract staff had separate rights and obligations with respect to federal employment regulations in that domain. Justice Antonin Scalia’s concurring opinion framed the issue succinctly:

Respondents claim that even though they are government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the government is seeking only information about drug treatment and information from third parties that is standard in background checks, and even though the government is liable for damages if that information is ever revealed, and even though NASA’s privacy act regulations are very protective of private information, NASA’s background checks are unconstitutional. Ridiculous. In carefully citing all of these factors as the basis for its decision, the Court makes the distinguishing of this case simple as pie. ¹⁶

The remaining 3 examples significantly differed in that the reviewing authorities (the US Department of Labor and various trial and appellate courts) recognized and upheld distinctions regarding laboratory staff classification and eligibility for workplace protections, as well as compensation for occupational injuries and accidents.

Laboratory staff are not traditionally trained to understand the legal complexities of occupational classification and eligibility for workplace protections. A clear explanation of eligibility for laboratory safety protections, benefits, responsibilities, and legal remedies should be defined by the employing organization and reviewed with the laboratory staff member before work begins, with annual updates at the time of performance review. Providing this information prospectively in vacancy announcements, annual training, and human resource procedural manuals would empower laboratory staff to better understand their legal rights and obligations.