While the world moves quickly to contain the Ebola virus, businesses across the globe are scrambling to figure out how best to manage workplace concerns and protect their employees. But as employers develop their Ebola response strategies, they should also be mindful of employee privacy, anti-discrimination, and other employment laws and regulations.
Protecting employees from Ebola without due regard for other workplace protections could expose your organization to potential liability. At the same time, it’s important to evaluate the real risk to your employees. While the World Health Organization has declared the Ebola outbreak a “Public Health Emergency of International Concern,” it has also acknowledged that the risk of a tourist getting the virus while visiting affected areas is extremely low. That said, employees in certain industries may be at greater risk, like those working in healthcare. Ultimately, any actions you take should be proportionate to the risks presented. Here are a few of the most common questions asked by employers and some practical tips for protecting your employees.
Are You Taking Steps to Prevent Employee Discrimination?
The Americans with Disabilities Act extends anti-discrimination safeguards to employees who have physical, mental or emotional impairments but are otherwise qualified to perform the essential functions of their jobs. These protections also extend to employees who are “regarded as” disabled. Employers should keep the ADA in mind when it comes to both screening employees for Ebola and accommodating those who have contracted the disease or are perceived to be at risk.
- Can you screen your employees for fever?
Many employers have considered fever screening employees returning from West Africa because fever is typically the first symptom of Ebola. However, the ADA prohibits employers from conducting “disability-related inquiries” and “medical examinations” of employees unless the employees present a “direct threat” to themselves or co-workers. In general, the U.S. Equal Employment Opportunity Commission (EEOC) disfavors fever screening because it is too likely to reveal an employee’s other disabilities. To do it legally, the employer must show that the screening is “job related and consistent with business necessity” or justified by a direct threat. Whether fever screenings meet either of these exemptions will depend on: the risk of exposure in the employer’s industry; the individual employee’s job responsibilities; the likelihood of Ebola exposure in the region; and the objective basis on which the employer seeks to test employees.
Some employers have asked employees who recently visited West Africa to voluntarily screen themselves for fever and answer a series of questions. This may be an effective way of uncovering infected employees without running afoul of the ADA. Employers may also require employees to report any diagnosis of a contagious disease without requiring the employee to specifically identify the illness. Moreover, employers can send employees home if they display Ebola-like symptoms. The employer can then require a doctor’s note certifying the employee is fit to return to work before allowing him or her back on the premises.
- Can you mandate employee quarantines?
Imposing mandatory quarantines on individuals who may have been exposed to Ebola is currently the subject of intense debate as government officials weigh the risks of exposure against the fear that quarantines will dissuade volunteers from assisting those who are ill. To address those concerns, the CDC has released interim guidelines that establish risk categories and provide recommendations for specific groups and settings.
Mandatory quarantines could be viewed as discrimination under the ADA if they don’t meet ADA exemptions. Rather than mandating quarantines, employers could consider allowing voluntary quarantines, implementing a temporary telecommuting policy, or placing affected employees on paid leave of absence during the 21-day incubation period to determine whether the employee is infected. Whether these alternatives survive scrutiny under the ADA, however, depends on the facts and circumstances of each case, so you should seek legal counsel before implementing a quarantine solution.
While the EEOC has not yet offered any Ebola-specific guidance for employers, its guidance during the H1N1 influenza crisis titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” offers several helpful tips. Although the guidelines were not made through the EEOC’s notice-and-comment rulemaking process, they at least provide insight into how the EEOC would address potential workplace discrimination related to Ebola. Among other things, the guidance instructs employers to follow CDC guidelines and recommendations from state and local health authorities, especially on whether the disease has risen to the level of a direct threat. Also, the guidance provides several examples of questions that employers can ask their employees related to the illness without violating the ADA.
Are you protecting against other potential forms of discrimination?
Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, national origin, and other protected classes. Ebola response plans should focus on all employees, not just individuals of West African descent. Employers should also take action to prevent and respond to any racial or national origin-based harassment of West African employees.
Is Your Workplace Safe Under the Occupational Safety and Health Act?
OSHA requires employers to provide a safe working environment. This includes protecting employees against “recognized hazards” which could lead to death or serious injury. When employees are likely to be exposed to Ebola (e.g., healthcare workers, airline and other travel industry personnel, laboratory workers, etc.), OSHA requires the employer to (1) conduct a “hazard assessment” of its worksite; (2) conduct employee awareness training; (3) develop procedures for issuing and using “personal protective equipment” like gloves and masks; (3) develop a reporting and surveillance mechanism for exposed employees; and (4) maintain records of all its illness-related conduct.
Additionally, an employee who complains about hazardous conditions is protected by the Act’s whistleblower provision and cannot be subjected to an adverse employment action or retaliation. The only way to avoid liability is to prove that there is no hazard or that the employer has a response plan that will reasonably protect the employee from exposure. For more on how to comply with OSHA requirements, see their “Interim General Guidance for Workers” here. The Centers for Disease Control and Prevention (CDC) provides additional guidance and recommendations here.
Are You Protecting Your Employees’ Privacy Rights?
Don’t forget about employee privacy rights if you maintain records or health information about employees. Employers can face civil or even criminal liability under the Health Insurance Portability and Accountability Act (HIPAA), which protects an employee’s privacy over individually identifiable health information and restricts disclosure to others. HIPAA provides an exception, however, when disclosure of a co-worker’s illness is necessary to protect the lives of others. Privacy rights should be considered when evaluating whether and how to notify other employees about ill co-workers. If there’s a true risk of a worker infecting others with Ebola, disclosure may be permitted.
When Are Employees Entitled to Medical Leave Related to Ebola?
The Family and Medical Leave Act (FMLA) requires covered employers to provide job-protected leave for certain medical and family reasons. That is, employers with more than fifty employees must provide qualified employees up to twelve weeks of unpaid leave if they or a close relative are infected. Thus, employees with Ebola and certain employees who may have Ebola would be entitled to request leave under the FMLA, and employees with a child, spouse, or parent infected by Ebola would also be entitled to unpaid leave.
Employers may be tempted to ask employees suspected of Ebola exposure to take FMLA leave. If the employee demonstrates no symptoms, though, the employer cannot count any forced leave against the employee’s FMLA time. In situations where an employee wishes to continue working while infected, the employer may be able to take harbor in the CDC’s recommendation that infected employees should be removed from the workplace for at least twenty-one days. Finally, if the employee exhausts his or her twelve weeks of FMLA leave but still cannot return to work, the employer may consider offering the employee additional unpaid leave.
Can Employees Protest Working Conditions When There is an Ebola Threat?
The National Labor Relations Act guarantees employees the right to organize into unions, engage in collective bargaining for better working conditions, and take collective action like organizing strikes if necessary. Unionized employees must be allowed to exercise their rights under their respective collective bargaining agreements if they seek greater employer intervention against Ebola. Furthermore, non-union employees still have the right to engage in concerted activity for their mutual aid and protection, such as organizing a strike to protest working conditions. If infected employees are union members, an employer may have a duty to consult with the union before implementing Ebola-related policies as well. In fact, many of the high-risk professions for Ebola exposure are unionized, and their unions have started campaigning for greater safeguards for their members.
Are You Considering State Laws in Your Plan?
For employees that become infected on the job, those employees are entitled to receive state workers’ compensation benefits in lieu of wages. Also, in some cases, state law may offer greater employee protections than the federal statutes outlined above. Employers should, therefore, consider various state legal pitfalls when developing their Ebola response plans.
PRACTICAL MEASURES TO PREVENT EBOLA INFECTION
Although the world is still learning how best to manage the Ebola outbreak, there are a few steps you can take now to protect your employees.
- Educate your workforce. Misperceptions about the disease fuel employee fear. Prepare materials for your employees listing relevant CDC information and contact numbers.
- Allay employee fears. Reaffirm that the company is committed to protecting the wellbeing of its employees and will take all appropriate measures to the extent allowed by law.
- Consider appointing a human resources representative to serve as an ombudsperson to receive complaints.
- Remind employees about the importance of good hygiene and encourage them not to go to areas affected by Ebola unless absolutely necessary.
- For employers with many employees working abroad, consider recalling the employees for a limited time, especially if the workers are working in high risk areas.
- Issue policies instructing employees what to do if they show symptoms of Ebola. These policies should discuss the employees’ rights under the law, such as FMLA leave.
- Evaluate your workers’ compensation policies to assure your organization has adequate insurance coverage.
- For employers with specific concerns about the Ebola outbreak, consider seeking counsel from a competent medical professional with experience in infection control to offer medical advice on Ebola.
- For employers in high-risk professions, train staff in preventing and handling accidental exposure. Employers in this industry can refer to the latest CDC guidance at www.cdc.gov.
Employers have the challenging task of protecting their employees’ wellbeing while also ensuring compliance with U.S. employment laws. The right response to the Ebola outbreak depends on several factors and requires careful consideration. The best plan should be tailored to your organization’s needs and involve legal counsel when necessary.