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Ebola: Lessons for Employers

October 24, 2014 -

As we go to press on this article, the 21-day quarantine period for the family of Thomas Eric Duncan, the only known Ebola¹ fatality on United States soil, is scheduled to end with apparently no further infections. More than 100 Northeast Ohio residents (mostly Frontier Airlines passengers) and at least one TSA agent are undergoing “self-quarantines” with no further infections expected (three are in actual quarantine). One Akron-area bridal shop owner is left to wonder publically when it would be safe for her to reopen her store. Meanwhile, Texas Health Presbyterian Hospital in Dallas goes through a public relations campaign designed to blunt the torrent of negative publicity as a result of the hospital’s admitted mistakes with patient Duncan; Emory University Hospital in Atlanta, which apparently did everything “right” in its treatment of two infected U.S. medical personnel flown in from West Africa, continues quietly to do its job.  At the same time, news arrives of another confirmed case in New York City.

For American employers, does Ebola offer more bark than bite?  From Andromeda Strain to the current hit television show The Last Ship, the worldwide spread of a killer disease with no cure is favorite fodder for science fiction writers.  And yes, such tales generally start with government officials assuring a nervous public that there is “nothing to worry about.”

The Centers for Disease Control, the Ohio Department of Health, and related health care organizations appear to be correct in advising “not to worry” about Ebola, at least for the United States, notwithstanding the heavy toll Ebola has taken in West Africa (primarily Guinea, Liberia, and Sierra Leone).  But the outbreak is far from well-contained and additional isolated U.S. cases of Ebola, notwithstanding border screenings (coming and going), would not be a surprise.

Employers thus may well receive general Ebola-based questions from their employees.  Some of those questions may be based on legitimate concerns, while others may stem from hysteria.  Employers should arm themselves for such inquiries with a quick review of basic facts about the disease.  A good source of likely questions and sound, medically-based answers can be found at the Centers for Disease Control website and also at the Ohio Department of Health (i.e., “Q:  Can Ebola be spread in airborne fashion?  A:  No. Ebola is a bodily fluid transmitted disease”).

Certain industries certainly are more affected by the Ebola scare than others.  In particular, healthcare workers, airline and other travel industry personnel, mortuary and death care workers, laboratory workers, border customs and quarantine workers, and emergency responders would likely be on the front lines of any further Ebola exposures in this country. OSHA standards implicated in a potential Ebola exposure situation include the relatively obvious, such as Bloodborne Pathogens, Respiratory Protection, and Personal Protective Equipment.  Other standards potentially implicated include Hazard Communication and the catch-all “General Duty” clause.  OSHA, to its credit, has already issued a detailed set of Interim Guidelines which can be found here. In addition, on October 20, 2014, the CDC issued revised guidelines for health care workers that brings them in line with those followed by Doctors Without Borders medical personnel for years in West Africa. These guidelines can be found here.

Health care and some other employers may face a “refusal to work,” purportedly because of an Ebola concern.  If there is a legitimate concern of actual on-the-job Ebola exposure, such as not following CDC Guidelines, then the refusal to work may rise to the level of concerted, protected activity under Section 7 of the National Labor Relations Act, along with OSHA’s Section 11(c) for retaliatory action based on complaints.  Such refusals to work must be analyzed on a case-by-case basis.²

Beyond employers in industries on the front lines of possible Ebola exposure, other companies may be affected through their employees who travel internationally.  Companies that do business in West Africa are certainly within their legal rights to suspend business travel to the region (as has Exxon Mobil with “non-essential” travel).  Prohibiting personal travel is quite another matter.  Indeed, under the FMLA, an eligible employee has a right to leave to care for a spouse, child, or parent with a serious health condition; it is not inconceivable that an employee could seek FMLA leave to visit an affected country for the purpose of caring for a stricken spouse, child, or parent.

The challenge for some employers will be what to do with employees returning from travel to Ebola-affected regions, or whose international travel may have placed them in proximity to persons exhibiting Ebola-like symptoms.  If those employees are subject to quarantine imposed by public health officials, the time missed from work may be covered by the FMLA, and any quarantine will certainly trigger decisions about whether the leave is paid or unpaid under company leave policies or any applicable state leave laws.

Employees returning from overseas travel but not subject to quarantine could pose other tests for employers.  Under the Americans with Disabilities Act, an employer may require, as a qualification for employment, that an employee not pose a direct threat to the health of himself/herself or others; but that direct threat standard requires particularized assessment based on objective medical or other evidence, and may not be based on speculation or fear.  Likewise under the ADA, medical inquiries and examinations of employees must be job-related and consistent with business necessity.  Simple travel to and from West Africa likely is not a sufficient justification without something more, i.e., visiting Ebola-stricken relatives or returning with Ebola-like symptoms (such as a high fever).  Of course, under the ADA, information obtained from employee medical inquires and examinations must be maintained on a confidential basis.  Finally, employers with employees from West African nations must avoid actions which would give rise to claims of national origin or race discrimination.

Whether or not many further cases of Ebola develop in the United States, the heightened public awareness of infectious disease comes at an opportune time: Cold and flu (and worse, a new nasty called Enterovirus D68) season is just around the corner.  The timing of the Ebola scare provides a good opportunity for employers to recheck sanitary housekeeping procedures as well as repost/redistribute flu protection guidelines developed five years ago in response to the H1N1 flu scare.

Such guidelines should include providing employees with products to remain germ-free while in the office, and going with the modern day thinking of encouraging employees to stay home when they are ill (as opposed to the old school approach of toughing it out).  Employer pandemic or other disaster response plans should be taken off the shelf and reviewed.

But the best piece of advice is perhaps one that mothers have given since time immemorial: “Wash your hands!”  Studies show that regular hand washing with hot water, and certainly before meals, is the single most effective prevention step to avoiding almost every common germ and disease known to mankind.

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¹  Correctly termed the “Ebola Virus” leading to “Ebola Hemorrhagic Fever” (EHF).

²  One Ebola-related call this author has received involved a truck driver who stated that he no longer wished to drive through Texas because “that’s where the Ebola is.”  The employer was advised that this was not a legitimate refusal to work. Other “Ebola scare” type incidents reported in the media have included school where the 10-year-old son of the Akron bridal shop attends being closed for a “medical scrubdown” (meanwhile, a police cruiser sits out front of their home); an elementary school teacher in Maine is on 21 days “quarantine leave” because she happened to be in Dallas for an education conference held approximately 10 miles from Texas Health Presbyterian Hospital; a school administrator in Mississippi is on paid leave because he traveled to a funeral in Zambia (which has reported a total of zero Ebola cases); a West African high school soccer player in Pennsylvania was taunted with chants of “Ebola” by players of the opposing team.

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For additional information and discussion on this topic, please get in touch with your regular Calfee contact or one of the Workers’ Compensation or Labor & Employment attorneys listed below:

Todd F. Palmer
216.622.8354
tpalmer@calfee.com

William L.S. Ross
216.622.8221
wross@calfee.com

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