News of the Ebola virus in the United States has caused significant fear and paranoia among many, despite the Centers for Disease Control and Prevention (“CDC”) and other public health agencies assuring us that the risk of contracting the virus is extremely low (you are more likely to be struck by lightning than to contract Ebola). There have been reports of schools closing, individuals being removed from public transportation, and colleges refusing to admit students from Ebola-affected countries because of generally unfounded concerns about the potential spread of the virus. In addition, people of African descent and those who have any connection to the continent have reported being discriminated against and ostracized because of fears of Ebola.
As a result, many employers are wondering what they can do to protect their workforces from the virus, and how they should address the fears among their employees as well as situations where employees may have had exposure to the virus. For example, how should employers respond when they learn that an employee is planning a trip to West Africa to visit family? What if other employees refuse to come to work because they fear that the returning employee may have been exposed to the virus? What precautionary steps can be taken before these situations arise? There are several proactive steps employers can take to effectively deal with issues that may arise and to reduce potential liability.
First, employers must separate the facts from the fiction of Ebola. By educating themselves about the virus, employers can then educate their employees about the transmission and symptoms of the virus, which may help ease fears and reduce some of the panic. The CDC should be an employer’s first stop. Its website provides extensive information about the disease, how it is transmitted, and how to avoid transmission.
In addition, employers should visit the Occupational Safety & Health Administration’s (“OSHA”) website for information about the standards to follow in the event an employee is exposed to the Ebola virus and for precautionary measures to prevent exposure to the virus. OSHA has also identified workers in certain industries as being at risk of Ebola exposure, including health care employees, and developed applicable standards and set forth recommendations on infection control and prevention specific to each industry.
To prevent the spread of the virus in the United States, the Department of Homeland Security (“DHS”) has instituted additional screening and protective measures at our ports of entry for travelers from Ebola-affected countries. These measures currently are in place at five U.S. airports (New York’s Kennedy, Newark’s Liberty, Washington’s Dulles, Chicago’s O’Hare and Atlanta’s Hartsfield-Jackson airports) where the majority of travelers from affected regions enter the country. The regions most affected by Ebola include: Guinea, Liberia, Sierra Leone, Nigeria, and the Democratic Republic of the Congo. The CDC urges Americans to avoid nonessential travel to those countries, and to practice precaution when in those countries. The CDC also is working with health care agencies to provide protocols and guidance on treating patients with the virus.
Legal and Practical Guidance
So what should employers do to protect their employees from the spread of the disease and protect against potential legal liability?
In 2009, in connection with the H1N1 outbreak in the United States, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on pandemic preparedness in the workplace and the Americans with Disability Act (“ADA”). While Ebola and the H1N1 virus are very different viruses, the EEOC’s Guidance is instructive, because some of the same issues that arose in the workplace in response to the spread of H1N1 are relevant to the Ebola crisis.
The EEOC Guidance sets forth the relevant ADA principles and explains how these principles will be applied during various stages of a pandemic. For example, the EEOC states in the guidance that an employer may ask questions about an employee’s exposure to pandemic influenza during a trip even before the employee develops symptoms. Notably, the EEOC does not view this as a disability-related inquiry. In the Ebola context, this would mean that an employer may inquire about employees’ possible exposure to the virus prior to travelling to an affected area and upon their return, even if they exhibit no symptoms. What an employer does with this information probably is the more important issue, and we have tried to address some of those questions below.
Common Questions and Concerns
- May an employer send employees home if they display Ebola-like symptoms?
Yes. Generally speaking, an employer may send an employee home who displays flu or cold-like symptoms to reduce the risk of spreading an infection to others in the workplace. However, employers should be cautious and not make assumptions about the basis for employees’ symptoms because that could lead to claims of disability discrimination against the employer, who may be deemed to be treating employees as disabled, even when they in fact may not be.
- How much information may an employer request from employees who report feeling ill at work or who call in sick?
Employers may ask such employees if they are experiencing Ebola-like symptoms, such as a fever. The employer must keep confidential all information about an employee’s illness.
- May an employer take its employees’ temperature to determine whether they have a fever?
At this point, no. The measuring of an employee’s body temperature is a medical examination, which an employer may only conduct in limited circumstances and when it is job-related. If Ebola reaches a pandemic level as assessed by the CDC or local public health authorities, then there may come a time when employers will be permitted to take employees’ temperatures as a precautionary measure.
- When an employee returns from travel in a country affected by Ebola, must an employer wait until the employee develops symptoms of the virus to ask questions about exposure to the virus during the trip?
No. Asking an employee about the location of travel and possible exposure to infection during a trip is not a medical inquiry, and thus does not violate the ADA. In addition, if the CDC or local public health authorities recommend that people who visit certain Ebola-affected regions remain at home for several days until it is clear they do not have the virus (and to date those agencies have not done so), employers will be able to implement similar restrictions on their workplaces.
- If an employer learns that an employee has just returned from travel in a county affected by Ebola, can the employer require the employee to remain home during the virus’ 21 day incubation period, even if the employee has not developed symptoms of the virus?
Absent any symptoms or evidence of exposure, employers run the risk of a disability discrimination claim for “regarding” an employee as being disabled. Such action, however, may be appropriate in workplaces where people have compromised immune systems or have a higher risk of exposure to the virus.
- What if the employee is showing symptoms of the Ebola virus?
Yes, if an employee is displaying symptoms of the virus, it is appropriate to require an employee to take a 21-day leave period. In fact, the CDC has suggested that with regard to employees who have been exposed to the virus, the employee should have his or her doctor evaluate the situation in consultation with public health authorities.
- What can an employer do if employees refuse to come to work because they fear becoming infected with Ebola in the workplace?
If the fear is unfounded (and it probably is), the employer should try to educate the employees about the Ebola virus by directing the employees to the CDC’s website for more information.
- Can an employer prevent an employee from traveling to a country affected by Ebola?
No. Employers cannot restrict the personal travel of their employees because they fear that the employee may come in contact with Ebola. At most, when the employee returns from travel in an Ebola-affected country, an employer may ask whether he or she is experiencing Ebola-like symptoms.
- May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy?
Encouraging an employee to telework may be an effective infection-control strategy if the employee’s job can be performed at home.
- Do I need to make revisions to my existing infectious disease policies?
Possibly. Employers should revisit their infectious disease policies to determine if they need some editing, since most employers may not have reviewed these policies since the H1N1 epidemic in 2009.
Melissa Calhoon Jones, chair of the Employment and Labor Group, defends and counsels employers on labor and employment matters. If you would like further information, please contact Ms. Jones via email.
This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.