Ebola is on the minds of many in recent months, so it is perhaps unsurprising that HR managers have been bombarded with questions about how their companies will respond. OSHA and the CDC have released guidelines for specific high-risk sectors primarily aimed at disease prevention and control, but little guidance exists for workplaces where the risks are less direct. Below is an overview of major concerns expressed and the federal laws they may implicate.
What are our Obligations if an Employee Contracts Ebola?
While employees are unlikely to contract Ebola, an infected person experiencing symptoms would qualify as “disabled” under the ADA. Were such misfortune to befall an employee, his or her employer would have the obligation to engage in the interactive process to identify and provide reasonable accommodations. Given the illness’s severity, a medical leave of absence would likely be most appropriate response. Employer policies and benefits will likely determine whether such leave will be paid or unpaid.
Eligible employees of FMLA-covered employers who contract Ebola, or whose covered family member contracts Ebola, will likely have a “serious health condition” entitling them to unpaid FMLA leave of up to 12 weeks. Were an employee to contract Ebola through occupational exposure (unlikely outside high-risk settings) he or she might be eligible for workers’ compensation benefits or leave. As discussed below, employees reasonably thought to have been exposed to the virus should be excluded from the work place until they no longer pose a direct threat, for which employers may require certification of an appropriate health care provider.
How Can We Prevent Exposure and Spread of Ebola in Our Workplace Without Violating Employment Law?
As flu season approaches, it’s always smart to encourage employees to follow general infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal. As a general matter, though, employers should not send employees home, bar them from work, deny vacation requests, or require them to submit to medical testing in an effort to prevent exposure to or transmission of an infectious disease in the absence of a direct threat.
Under the Americans with Disabilities Act, employers may not discriminate against employees on the basis of either actual or perceived disability. The application of the ADA to “perceived disability” extends protection to individuals suspected or believed to be exposed to disease, even if symptoms never emerge. In such instances, employers may not keep employees out of the workplace unless they pose a “direct threat or significant risk of substantial harm to the health and safety of others that cannot be eliminated or reduced by reasonable accommodation.” Further, employers cannot demand medical information or require examinations unless they are job-related and consistent with business necessity, or a reasonable basis exists to believe the employee poses a direct threat.
Current CDC guidance on how the disease spreads makes clear that the occurrence of an actual “direct threat” in most workplaces is very unlikely. When assessing whether a direct threat exists, employers must factor in the duration, nature, severity, likelihood, and imminence of the harm based on up-to-date, objective medical knowledge. Because Ebola is not airborne and is only transmitted through contact with the bodily fluids of an infected person whose symptoms have started, CDC guidance currently describes transmission risk as low, even for travelers visiting affected areas. Only individuals who have had direct contact with infected persons (like healthcare workers or family members) or infected materials (like laboratory or mortuary workers) would likely pose a direct threat to others in the workplace sufficient to justify mandatory leave under the ADA.
So what can employers do? OSHA’s general duty clause requires employers to provide a workplace “free of recognized hazards that can cause death or serious harm to workers,” including Ebola, which OSHA identifies as a bloodborne pathogen. Pursuant to this duty employers can require employees to notify you immediately if they believe they have been exposed to Ebola. They can also communicate to workers OSHA and the CDC’s recommendations that potentially exposed individuals monitor themselves for 21 days for fever, muscle pain, headache, sore throat, diarrhea, vomiting, rash, and other symptoms consistent with Ebola; seek immediate medical treatment if any occur; and limit travel and contact with other people.
EEOC guidance on responding to pandemic flu may be helpful in the event of possible exposure to Ebola, which shares symptoms with influenza. If an employee calls in sick or reports feeling sick at work, the guidance permits employers to ask if the employee is experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat; send any such employees home if confirmed; and require a doctor’s note certifying fitness to return to work before coming back.
Employers who take steps to limit the travel and/or return to work of employees known or suspected to have family in Ebola-effected countries (for instance by denying requests for vacation time) expose themselves to risk of claims of discrimination on the basis of national origin. While travel of individuals from certain West African countries to the United States has received major media attention, the CDC considers most travel even to effected countries to present low risk of Ebola transmission. If an employee volunteers his or her plans to travel to an area of high Ebola risk employers may ask for clarification, but should consult counsel before taking any action affecting the terms or conditions of that individual’s employment. Employers concerned about employees traveling to high-risk areas without reporting potential exposure can adopt a policy requiring all employees to disclose travel to areas with heightened risks of transmission of communicable diseases if such policy will be applied uniformly.
If employers collect any health related information either volunteered or as result of legitimate inquiries, they should maintain the confidentiality of that information to the fullest extent possible to avoid violating ADA, HIPAA, or GINA requirements relating to medical privacy.
How Can We Address Employee Fears and/or Absenteeism?
What if your employees express fear or concern about the possibility of transmission of Ebola in your office or don’t want to come to work? Two considerations should inform your response. First, OSHA protects employees’ right to refuse to work in conditions they reasonably believe clearly present a risk of death or serious physical harm. Such refusal is only protected, though, if the employee informs his employer of the danger and the employer fails to eliminate it. Avoiding work where little or no exposure risk exists (as is currently the case in most workplaces) would not be a good faith refusal, and may be addressed through an employer’s normal attendance and discipline procedures where the employer can objectively establish that no such risk exists.
If employees discuss concern for workplace safety among themselves or a group of employees refuses to come to work because of workplace safety concerns, their activities may constitute “protected concerted activity,” the discouragement or discipline of which might lead to a charge of an unfair labor practice under the National Labor Relations Act. While little guidance exists on the extent of protection activities spurred by Ebola-related fears might receive, sharing current, accurate information about the illness and its spread and complying with applicable workplace health and safety regulations should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.
Additional Resources:
OSHA Ebola homepage: https://www.osha.gov/SLTC/ebola/
CDC Ebola homepage: http://www.cdc.gov/vhf/ebola/index.html