By Peter Kohn
RN
January 1999

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 their ailment, they may also find it necessary to live with severe restrictions — even being in the same room as a single latex balloon could trigger their symptoms.

Worse yet from a nurse’s perspective, they may not be able to work — or receive care — in a hospital, clinic, or office where latex products such as protective gloves, catheters, and syringes are an integral part of the surroundings. Indeed, because of repeated exposure to latex gloves at work, as many as 12% of healthcare workers are believed to be latex-sensitive.(1)

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.” And, although some states have recently considered banning or limiting the use of latex products among healthcare providers, none has done so as yet.

Given the lack of comprehensive protection, you need to know what you are entitled to if latex allergy disrupts your ability to live and work as usual. If you are not latex-sensitive, you need to know how to reduce your risk of becoming so, and how to avoid liability when caring for a patient who is latex-sensitive.

First step: Protect yourself

If you suspect you are allergic to latex, seek medical attention at once. If you’re diagnosed as having a mild latex allergy, medication may be enough to manage your symptoms. But if your condition is severe, you may have to avoid all latex products and areas where the protein allergens — antigens that fasten to the powder used in some latex gloves — are airborne. You should also start wearing a medical alert bracelet.

It’s important that you inform your employer of your illness as soon as possible after being diagnosed; 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’s a review of the primary ones:

Workers’ compensation. Although there has been no definitive statement saying that latex allergy is a compensable, work-related injury, symptomatic employees have been receiving workers’ compensation benefits. Most nurses are covered by state workers’ comp laws; among the exceptions are independent contractors and private duty and per diem nurses. In a few states, those who work for employers with a small number of employees — say, fewer than four — may not be covered. Federal employees are covered by a separate plan.(2)

Generally, workers’ comp laws provide medical benefits for occupational injuries as long as treatments are approved by your employer’s workers’ comp carrier. To ensure coverage, keep complete records of each time you develop latex-related symptoms and the care you received, including doctor visits and lab results.(3) Also make sure your doctor sends the required paperwork to the workers’ comp carrier.

If you become temporarily disabled, workers’ comp laws in most states guarantee weekly payments of two-thirds of your usual weekly wage; some states, like Pennsylvania, are less generous. 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.(2)

Consider, too, getting disability insurance for additional compensation if you cannot return to work; you can get your own policy (which can be expensive) or see if your employer offers disability insurance that goes beyond basic coverage. When you apply, inform the insurer of your allergy; failing to do so could invalidate your policy.

Americans With Disabilities Act (ADA). 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 (EEOC), 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 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, it does not have to go latex-free.

Lawsuits against manufacturers. If you are covered by workers’ comp you’re precluded from suing your employer, but you may 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 failed 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. Last February, 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.(4,5) The case is currently on appeal.

The preferred strategy: Risk reduction

The best way to avoid legal action is by decreasing your exposure to latex before it becomes disabling. In 1997, the National Institute for Occupational Safety and Health (NIOSH) issued recommendations to minimize the hazards of ongoing latex exposure.(6)

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.

Preventive measures: A must for patients

If a patient is harmed because you exposed him to a substance that you knew, or should have known, he was allergic to, you may face a malpractice suit. That’s one reason to assess all your patients for latex sensitivity.

People who work in the rubber industry or patients who have spina bifida or have undergone multiple surgeries are at high risk for latex sensitization. So are those who have a personal or family history of allergies — particularly to foods such as bananas, avocados, kiwi, potatoes, and tomatoes. If a patient falls into any of these categories, note that fact in the chart and notify the doctor of your suspicion.

Make sure everyone on the healthcare team is aware that the patient is, or may be, latex-sensitive. Place a medical alert band around his wrist and clearly flag his chart. Have a crash cart stocked with latex-free gloves and equipment and drugs for treating anaphylaxis standing by.(7)

If a patient does have a severe latex reaction, treat him and then notify your supervisor and the physician. Fill out an incident report and document your nursing interventions.(8)

Retain the product that caused the reaction, if possible, so it can be examined later. Follow your facility’s procedures for complying with the Safe Medical Devices Act. This law requires healthcare facilities to report incidents in which equipment caused or contributed to a death or serious illness or injury to the FDA, the manufacturer, or both. You can also voluntarily report the incident to the FDA’s MedWatch Program at (800) FDA-1088.

Until the day that hospitals become latex-free, natural rubber will continue to be a threat to you, your colleagues, and your patients. 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 bear.

For more information…

A.L.E.R.T., Inc. P.O. Box 13930 Milwaukee, WI 53213-0930 Telephone: (888)-97ALERT Web site: http://www.execpc.com/~alert/Pages.main.html

A.L.E.R.T. (Allergy to Latex Education & Resource Team), a group founded by about 30 healthcare workers who are allergic to natural rubber latex, provides educational material, holds local support meetings, and has lists of nonlatex product alternatives.

ELASTIC c/o Elizabeth C. Borel, DMD National Director, ELASTIC 196 Pheasant Run Road West Chester, PA 19380 Telephone: (610) 436-4804 Web site: http://pw2.netcom.com/~ecbdmd/elastic.html

ELASTIC (Education for Latex Allergy Support Team and Information Coalition) works to promote awareness of latex allergies and to preventn future sensitizations. Its Web site includes a comprehensive listing of other sites on latex allergy.

Spina Bifida Association of America 4590 MacArthur Boulevard, NW Suite 250 Washington, DC 20007-4226 Telephone: (800) 621-3141 or (202) 944-3285 Web site: http://www.sbaa.org/Latex.htm

Representing a population who are at high risk for latex allergy, this organization has lists of items used in the hospital, home, and community that pose a risk to latex-sensitive individuals, as well as lists of alternatives and barriers to latex.

REFERENCES

PETER KOHN, JD

The author, a senior associate attorney at Monheit, Monheit Silverman & Fodera in Philadelphia, represents latex-sensitive healthcare workers in suits against glove manufacturers.