The outbreak of the Ebola virus in West Africa—along with a handful of cases in the United States—has left many employees and employers confused. As with any real or perceived crisis, there are key steps an employer should take to mitigate workplace panic and avoid legal claims. These include getting accurate information, communicating the information to employees and customers, and complying with a bewildering set of rights and responsibilities under state and federal law.
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Assess the Risk. Not all workplaces present the same degree of risk. Assess the risk in your organization and, based on that assessment, determine the appropriate level of response. Since Ebola is spread by direct contact with the bodily fluids of someone who is sick with Ebola, contaminated objects, and infected mammals, health care workers are generally at the greatest risk. Workplaces whose employees travel frequently, who have large populations of employees with family or friends in West Africa, or provide goods or services to infected regions may also face significant risk.
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Have a Plan. In 2009 many employers prepared plans for responding to the H1N1 Pandemic. Some even designated a Pandemic Response Coordinator. The plans and policies that were conceived at the time can provide a useful starting point, recognizing that unlike H1N1, Ebola is not currently considered a “pandemic.”
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Stay Informed. There is considerable misunderstanding about the Ebola virus and how it is spread. Employers can get reliable information from various state and federal agencies: the CDC, the World Health Organization, the National Institute for Occupational Safety and Health and state agencies such as the Minnesota Department of Health. It is important to monitor these and other sources of reliable information as the situation develops and adjust plans and communications so that they reflect the best currently available knowledge.
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Share Your Knowledge. Let your employees, customers, and other third parties such as contractors, volunteers, patients, residents, and students know that you are taking steps to protect them by sharing accurate, factual information in an objective and even-handed fashion. Use your communications to show that you take their safety seriously.
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Comply With Legal Obligations. Employers have obligations to employees who have been or may be exposed to Ebola, those who work with them, and the unions that represent affected employees. Before implementing new policies or procedures, an employer should carefully consider whether there any restrictions on its ability to act unilaterally, including the duty to bargain with one or more unions.
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Leaves of Absence and Other Time Off. In many cases an employee who is or was infected with Ebola will be entitled to a leave of absence or other time off as a reasonable accommodation under the ADA and its state counterparts. Employees who meet applicable eligibility requirements will generally be entitled to FMLA leave for themselves and to care for family members who are infected with the virus. In addition, many state and local sick leave laws provide employees with a right to time off for the employee’s own illness or to care for a family member. Since these laws vary by jurisdiction, employers with operations in multiple locations should carefully review the applicable state and local law. Employees may also be entitled to leave under employer policies and collective bargaining agreements.
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Travel Restrictions. Employers can require employees to report travel to areas infected with Ebola and can prohibit work-related travel to such areas. Preventing travel for purely personal reasons may constitute interference with FMLA rights, interference with protected off-duty conduct, or the terms of applicable collective bargaining agreements and employer policies. CDC travel restrictions are a useful tool in this regard.
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Health Information. Medical inquiries and examinations of employees are subject to extensive regulation by the ADA and state laws. In general, only inquiries and examinations that are job related and consistent with business necessity are permitted. Fitness for Duty certifications are allowed in some, but not all, circumstances. The EEOC’s Guidance on Pandemic Preparedness provides helpful guidance, but medical inquiries should be made and examinations required (including requiring an employee to take his or her temperature) only after careful consideration of factors such as the nature of the employer and its customers, the type of work performed by the employee, and whether the Ebola virus has been determined to be a pandemic.
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Discrimination and Harassment. Employees have the right to be free from harassment and discrimination based on national origin, race, and real and perceived disabilities. Employers may ask questions that seek non-medical information from employees, such as whether the employee has traveled to West Africa and whether the employee may have been exposed to Ebola so long as they are asked of all employees, not only employees of a particular race or ethnicity.
Providing factual information to employees about Ebola and how it is spread--and updating the information on a regular basis as new knowledge emerges--can help avoid the panic that often leads to behavior that can result in a claim of discrimination or harassment. Employees should be reminded of their obligations to avoid such behavior and encouraged to report incidents. All claims should be carefully investigated and steps taken to protect the employee against retaliation.
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Refusal to Work. Employers have a duty to provide employees with a safe workplace under the general duty clause of the Occupational Safety and Health Act. OSHA, which enforces the Act, has provided some general guidance on the issue. Employees who have a good faith belief that there is an imminent danger in the workplace have a right to refuse to work in some, but not all, circumstances. If disciplined, an employee who refuses to come to work because of the fear that a co-worker who has travelled to West Africa may be infected with Ebola may assert protection under the Act’s non-retaliation provisions.
Similarly, concerted refusal to work based on concerns about safety and health are also protected under the National Labor Relations Act, without regard to whether the employer is unionized.
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As the Ebola outbreak continues and new information becomes available, employers need to remain vigilant in complying with their obligations under state and federal law. Employers who remain calm and steady, act on fact rather than innuendo, and communicate frequently and clearly with all of their constituencies can navigate the situation successfully.
