The threat of an Ebola outbreak has dominated the news for months. With the possible exceptions of health care-related organizations, it’s unlikely that most employers will ever have to deal with the disease.
However, it’s a timely reminder that even relatively common maladies (such as the flu) can wreak havoc on business operations.
THE LAW: Employers must constantly balance their business needs, individual employee rights and collective employee rights. When infectious diseases such as influenza (or Ebola) threaten a workplace, employers need information to keep their businesses running while respecting individual employee rights and protecting the workforce from infection.
Several federal laws affect how employers may collect information. The ADA governs what questions employers may ask in preparing for emergencies.
The FMLA requires employers to provide unpaid leave to eligible employees for clearly delineated reasons that may or may not come into play if an epidemic disaster strikes.
Major outbreaks could require National Guard or reservist deployments, forcing employers to cover for highly trained personnel. Many states require employers to allow first responders time off to help when disaster strikes.
HOW TO COMPLY: After the Sept. 11 terrorist attacks, the EEOC loosened rules on the questions employers may ask employees without violating the ADA. Employers may ask about an employee’s medical condition as long as the inquiry’s purpose is to plan for an emergency.
Employers may inquire if employees are planning to or have recently traveled to Ebola-affected West African countries or have had contact with anyone who has and, if so, whether they are experiencing any symptoms.
Employers, however, should make sure they do not ask in a way that may reveal a disability. The ADA bars such inquiries.
The U.S. Department of Homeland Security has instituted a policy of taking passengers’ temperatures as they disembark from flights from the affected countries. Employers may elect to take employee temperatures also, but doing so without some legitimate reason to believe the employee has been exposed most probably violates the ADA.
Rather than knee-jerk temperature-taking, employers should develop a policy detailing who has their temperature taken and when. This approach shows the employer is complying with the ADA’s “business necessity” requirement.
Leave and quarantine
Employees who may have been exposed to Ebola and report symptoms should contact their doctor immediately. They should not come to work.
Employers, of course, cannot quarantine employees, but they may place an exposed employee on leave until he or she is in the clear. Ebola is generally considered to have 21-day incubation period.
Employers should follow guidance from the Centers for Disease Control (CDC) when determining the length of ebola-related leaves.
Leave for quarantine or actual Ebola illness may also be leave under the FMLA. Of course, only eligible employees may take FMLA leave. Check your state’s family leave laws, and any paid sick leave laws that apply to your operations.
Leave policies
Review your leave policies to ensure that they allow you enough flexibility to deal with unusual medical emergencies.
For example, refusing to allow an employee to come to work on the suspicion they are infectious could violate the ADA. The law specifically bars employers from “regarding” employees as disabled when they are not. As a practical matter, though, employers that pay employees for the time off and allow them to return to work with no penalty are less likely to find themselves in court.
Telecommuting
Allowing exposed workers to telecommute may be an option depending on the specific job and its essential duties. Your telecommuting policy should specifically name which jobs are eligible for telecommuting.
Some positions may require some in-person attendance that could potentially be worked around during the period that an employee may be infectious.
Staying on top of it
Ebola and other infectious diseases present unique challenges to employers. Free flow of information is key. First, you must know if an employee is at risk for exposure. Second, you must monitor the changing landscape by constantly seeking updated information from the CDC and other health organizations.
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If disease panic spreads, beware ‘Ebola strikes’
Potentially, some workers may refuse to work with employees whom they believe have been exposed to the Ebola virus.
The Occupational Safety and Health Act (OSHA) may protect “Ebola strikers” under its whistle-blower provision. Similarly, the National Labor Relations Act may also afford them some protection.
