As a result of all of the media coverage surrounding the Ebola issues, many of our clients have wondered whether they need to do anything, as employers, to prepare for similar issues and to address related employment issues. Whether it is the Ebola virus or another virus or pandemic, the general rules for employers remain the same.
The Ebola Virus Basics
The key to contracting the Ebola virus is direct contact (through broken skin or mucous membranes in, for example, the eyes, nose or mouth) with someone who is carrying the virus. The Centers for Disease Control and Prevention (“CDC”) has a website dedicated to understanding, preparing for and preventing the spread of the Ebola virus. For additional information regarding the Ebola virus, including symptoms and other useful information, please visit the CDC’s website.
For employers, the key is not to panic. Given that we are at the early stages of flu season, employers should avoid overreacting at the first sight of an employee with flu-like symptoms. Employers concerned about particular employees should consult with legal counsel before taking any steps that may lead to liability under various employment laws (more on this below).
Important Employment Issues Each Employer Should Consider
Pandemics (whether the Ebola virus, the 2009 H1N1 virus or influenza) implicate a number of employment laws. Employers must strike a proper balance between protecting employees from infection and operating within the confines of applicable law.
1. Consider the requirements of the Americans with Disabilities Act before requiring employees to undertake a medical examination.
The Americans with Disabilities Act (“ADA”) prohibits, among other things, medical examinations for applicants and employees. An employer cannot require a current employee to undergo a medical examination unless the examination is job related and consistent with business necessity. According to the Equal Employment Opportunity Commission (“EEOC”), medical examinations of an employee are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions of his/her job will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). For additional guidance on direct threats, please see the EEOC’s website.
The EEOC’s 2009 guidance specific to the H1N1 virus sheds additional light on how employers should make direct threat assessments before requiring a medical examination. The EEOC states that whether a pandemic virus rises to the level of a direct threat depends on the severity of the illness. Helpful data points to determine the severity—and associated direct threat—of a virus are the warnings and guidance from government agencies such as the CDC, state health departments and other recognized authorities on illness and disease.
2. Consider the Occupational Safety and Health Act when accessing your workplace practices.
In addition to the ADA’s medical inquiry restrictions, most employers must follow the safety and health regulations dictated by the Occupational Safety and Health Administration (“OSHA”) under the Occupational Safety and Health Act (“OSH Act”). Although OSHA does not specifically regulate Ebola or other pandemics, employers may trigger workplace safety violations under OSHA’s General Duty Clause if they do not take proper steps to protect their employees.
Employers run the risk of receiving citations under the General Duty Clause if they expose employees to a hazard that the employer could reasonably have reduced and that the employer recognized would cause or likely would cause serious physical harm to employees. Employers in industries with a high risk of disease contamination (e.g., healthcare employers) should therefore evaluate potential hazards and determine whether they can take steps to reduce the risk of exposure to employees.
Employers should also keep in mind that an employee who reasonably refuses to report to work because of a dangerous work condition—including contracting a pandemic virus—may be protected from retaliation.
OSHA’s guidance about Ebola and pandemic influenza provides useful information for employers who want to prepare for and respond to contagious disease risks in their workplaces.
3. Employees may be entitled to leave under the Family and Medical Leave Act.
Federal and state (where applicable) family and medical leave laws (“FMLA”) complicate the web of responsibilities an employer has to navigate when it comes to dealing with ill employees. For employers covered by these laws (generally employers with 50 or more employees under federal law), an eligible employee who has contracted the Ebola virus or another pandemic virus may qualify for leave based on a serious health condition. Similarly, an eligible employee may qualify for leave if an eligible family member contracts a virus that qualifies as a serious health condition.
If an emergency situation prompts the need for FMLA leave, administering the leave in a lawful manner gets more complicated than under normal circumstances. For example, it may not be practical to solicit and review medical certification forms. In these situations, employers must have sufficient information (including the employee’s statements) that the underlying condition qualifies as a serious health condition. Designating leave as FMLA without sufficient information establishing a serious health condition can result in a retaliation claim. In emergency situations, employers may also need to exercise forbearance on the return of medical certification forms, particularly if an employee needs to assist a family member who is ill. For additional FMLA guidance, please visit the United States Department of Labor website.
Steps Employers Should Take to Minimize Workplace Safety and Health Issues
As with any other workplace safety and health issues, the recent Ebola-related news has raised many questions about what employers should do when facing similar situations. Although each employer is unique and each industry must confront different obstacles and risks, employers should, at a minimum, follow the steps outlined below.
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Have a plan. Consult with internal safety experts and review the guidance provided by government agencies regarding specific safety issues. Create a plan (preferably with the assistance of legal counsel) that addresses issues specific to your workplace and your industry.
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Communicate your plan to employees. Your company’s protocols for dealing with safety issues should not be a secret to any of your employees. Publicize the plan internally and ensure that employees have ready access to the plan.
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Train your employees. Train your employees about your company’s safety protocols on a yearly basis. If you are concerned about a particular risk that is not usually common to your workplace or if you update your plan, provide additional training as needed to address these issues.
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Supervise implementation of the plan. Having a plan in place and training your employees to follow certain procedures is meaningless if no one supervises the process. Designate individuals to review employee actions to ensure that the plan’s protocols are followed and to identify potential shortcomings of/improvements to the plan. Whenever necessary, update your plan to ensure that it addresses all major safety risks and train employees on the changes made to the plan.
Employers that consult government and other advocacy organization websites to adopt ideas, disseminate information and prepare practices and procedures for addressing workplace safety and health issues will be in a good position to protect against unwanted legal action.