"It seems like a good time to revisit this topic and highlight a few developments."

It has been some time since automated external defibrillators (AEDs) were last addressed in this newsletter, so it seems like a good time to revisit the topic and highlight a few developments.

To summarize the history of AEDs in the workplace, let’s begin by looking back to the year 2000. That year Congress passed the Federal Cardiac Arrest Survival Act (aka the Good Samaritan Law.) This statute offers protection to non-professionals against all liabilities arising from the emergency use of AEDs to assist victims of cardiac arrest, except in cases of “willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the victim...” The act also recommends the placement of, or AEDs, in all Federal buildings and provides for Federal Good Samaritan protection to emergency first responders who use AEDs.

In 2001 OSHA issued a strong recommendation in favor of increasing the placement, access and use of AED’s in the workplace. Details can be found in OSHA Publication 3174, (2001), which in their words “Stresses the need for AEDs in the workplace to save lives” and states that, “AEDs are effective, easy to use, and relatively inexpensive.” A summary of OSHA actions related to this subject can be accessed on-line at http://www.osha.gov/SLTC/aed/

Congress in short order took further steps in its efforts to endorse the use of AEDs, passing in 2002 the Community Access to Emergency Devices Act (Community AED Act) as part of the Public Health Security and Bioterrorism Response Act.  This act made available $30 million in federal grants to states and localities for the purchase and deployment of automated external defibrillators (AEDs) in public places where cardiac arrests are likely to occur. The bill once again encouraged private companies to purchase AEDs and to train employees in CPR and emergency defibrillation.

By 2005 OSHA began to take steps starting the rulemaking process by announcing proposed rules (Rules 70:34821-34980; 2005, June 15) that directly address AED requirements for electric utilities. Included as part of the proposed rule, OSHA requested public comments on whether the standard should require the employer to provide AEDs and, if so, where they should be required and what the potential costs and impacts might be from such a rule. So far, no decision has been made to impose this requirement. Details of the proposed rules can be found on the OSHA Website at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=18361

In the years since 2000, many utilities have chosen to obtain AEDs based on their belief that these devices were valuable and effective additions to their loss prevention or health and safety programs. Many of the utilities we visit are among this group, with some going so far as to equip all or most of their crew vehicles in addition to the more typical provision of AEDs in their office and warehouse locations. Other utilities have chosen to postpone action, either awaiting rules compelling them to act or for other internal reasons of their own. If yours is one of these utilities, it may be time to rethink that decision.

Here’s some further food for thought--

The leading cause of death in the U.S. is sudden cardiac death (SCD) which it is also one of the leading causes of death in the workplace. Even more importantly to electric utilities, electric shock is a known cause of cardiac arrest and SCD even in healthy adults. As a result, there may be sufficient facts to lay the foundations for a theory of “foreseeability,” one of the key elements needed to establish civil negligence and legal liability.

In addition, it is apparent that AEDs are becoming ever more common in both public spaces and workplaces due to the governmental steps recounted earlier in this article as well as because employers have found a variety of other good reasons to deployment AEDs. This is changing the basis for public expectations, especially for workplaces with known high risk factors.

Finally, CPR training, which is required for utility workers, now routinely includes instruction on AED use. Most of the CPR training regimens in use by our clients include this training.

The bottom line is that as a result of all these factors, it is increasingly possible to make a good case that today, for companies with high risk environments for SCD such as electrical utilities, the liability arising from a decision not to provide AEDs in the workplace is actually greater than doing nothing at all. So where does that leave us? Here are some facts:

1. While so far OSHA does not specifically require AEDs, OSHA's General Duty Clause states that employers must provide a workplace "free from recognizable hazards that are causing or likely to cause death or serious harm to employees." (Court interpretations of this clause conclude that it means that employers have a legal obligation to provide a workplace free of conditions that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.)
2. The majority of utilities seem to have elected to deploy AEDs for their potential benefits to both employees and the public.
3. People are generally more aware of, and comfortable with, the idea of AED use, and may even be coming to expect to find them generally available.
4. The civil law legal climate often closely tracks public attitudes and expectations.
5. Prices for AEDs have fallen steadily since 2000, and new units are available for well under $1,500, while refurbished units (Usually demo units, fully guaranteed) are even more economical.

Only you and your managers can decide what this adds up to for your utility. But I can’t see why anyone would hesitate to invest in the acquisition, deployment, and employee training on the use of as many of these AEDs as they have buildings and crew vehicles. A relative small investment may prevent tragic and costly outcome.