This article was posted in ABA Health eSource, a publication of the American Bar Association.

Buried near the end of articles in the New York Times and The Washington Post about the first United States Ebola patient, Thomas Eric Duncan, was the observation that the quarantine being imposed on Mr. Duncan’s fiancée, her daughter and her daughter’s husband would prevent them from going to their regular jobs as nursing assistants and health aides.¹

It should not be a surprise that a significant number of health workers, particularly in urban areas, are native-born West Africans or the descendants of recent immigrants from West Africa. Living in the United States, these employees worry about their loved ones who live in Sierra Leone, Guinea, and Liberia. They often send money home to support those who remain behind; they (or people with whom they live) also often travel back home to visit their families and, sometimes, to attend funerals. In addition, like Mr. Duncan’s Dallas-based family members, healthcare workers may live with individuals who travel from Ebola-hotspots, even if the healthcare workers are not themselves visiting those countries.

To what extent may an employer impose any restrictions – or conduct a medical inquiry – of employees who have no known direct exposure to the Ebola virus (e.g., they have not treated Ebola patients) but who have visited areas affected by the Ebola virus or who live with people who have recently been to those areas? Among other things, could an employer lawfully:

• notify employees that they will not be given leave to travel to affected countries (and terminate the employees if they choose to go despite the prohibition)?
• impose an involuntary leave of absence or suspension on employees who choose to visit affected countries, barring them from the workplace until the incubation period for Ebola has lapsed?
• insist that employees have medical examinations to rule out Ebola or that they take their temperature twice a day?
• ask employees detailed questions about their travel, who they visited, and whether anyone they came in contact with was exposed to the Ebola virus or had any symptoms of illness?
• ask employees personal questions about the people with whom they live, and the health status and travel experiences of any household member (whether family or not)?

Both the Americans with Disabilities Act (“ADA”)² and Title VII of the Civil Rights Act (“Title VII”)³ impact the policies that an employer may legally adopt. Employers that overreact to perceived Ebola risks may trample on the legal rights of their employees, discriminate against hardworking, loyal employees, and subject themselves to liability under the ADA and Title VII, as well as liability under similar state and local laws.

The ADA protects employees from unnecessary inquiries about their health, as well as from discrimination on the basis of actual or perceived disabilities. Title VII protects employees from discrimination on the basis of color, race, or national origin. If an employment policy is directed at a group of employees because of national origin (e.g., a West African staff member is reassigned when a resident in a long-term care facility refuses to be treated by West African aides because of Ebola concerns), or if a facially neutral policy nonetheless has an adverse impact on employees of a particular race, color or national origin, the employer may violate Title VII.

Thus, what steps may an employer – and particularly a healthcare provider – legally take to ensure the health of its staff (and patients), as it might be affected by employees who have no known direct exposure to the virus, but who have traveled to West African nations suffering from the Ebola outbreak or employees who live with such people? The general answer is that reasonable policies that minimize an actual Ebola risk and that are consistent with recommendations made by the Centers for Disease Control and Prevention (“CDC”) or the state or local health departments should be deemed compliant with applicable employment laws.

Employers are likely to be given significant latitude when deciding how to respond to employees who are known to have been exposed directly to Ebola patients. The infection of Nina Pham and Amber Joy Vinson, the nurses who treated Thomas Duncan at Texas Health Presbyterian, as well as the unexplained infections of doctors in West Africa who have caught the Ebola virus despite their rigid compliance with the recommended personal protective equipment protocols, makes it significantly less likely that a court would second-guess a healthcare provider’s reasonable judgment on what was necessary following an Ebola-volunteer’s return to the United States. Steps taken by an employer out of concern about potential exposure, merely because of the employee’s travel to an Ebola-region, or because of the travel of one of the employee’s household members, are more difficult and more likely to be open to challenge. Policies that are more conservative, more intrusive or more punitive than suggested by the CDC or other public health departments may make employers vulnerable to claims that they have violated the rights of the employees adversely affected.

ADA Compliance

The ADA prohibits employers that have 15 or more employees from asking employees health-related questions except under very limited circumstances. Specifically, once an employee has started work, employers may require employees to undergo a medical exam⁴ or ask questions relating to medical issues only if the examination or questions are (1) job related, and (2) consistent with business necessity.⁵ A disability-related inquiry or medical examination of an employee may be “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 will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”⁶ “Such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions.”⁷

Although there is no case law or Equal Employment Opportunity Commission (“EEOC”) guidance addressing Ebola specifically, the EEOC’s guidance during the 2009 H1N1 flu pandemic is instructive.⁸ That guidance directed employers to rely on the CDC and other public health organizations to determine whether the H1N1 flu was “significantly more severe” than the usual flu and thus posed a direct threat.⁹ To the extent that the health authorities concluded that it was more severe, the EEOC advised that employee medical inquiries and examinations could be appropriate and not in violation of the ADA.¹⁰

Similarly, employers should be able to conduct reasonable medical inquiries of its employees to assess the risk of Ebola exposure. The CDC has issued guidance in response to inquiries from colleges and universities that wanted to know how to deal with students, faculty and staff who traveled to Ebola-regions. According to the CDC, those institutions:

should identify students, faculty, and staff who have been in countries where Ebola outbreaks are occurring within the past 21 days and should conduct a risk assessment with each identified person to determine his or her level of risk exposure (high- or low-risk exposures, or no known exposure).¹¹

Although there is no specific guidance from the CDC advising hospitals, long-term care facilities, and other medical organizations to engage in similar lines of inquiry, there is no logical reason to suggest that health-related organizations should apply lesser standards than educational organizations. Consequently, health-related organizations can and should engage in a risk-assessment of their employees.

However, the guiding principle of any assessment must be the science – not fear or pandering to a nervous community. The CDC’s “Epidemiologic Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus” (as of Nov. 19, 2014)¹² is a helpful starting point for drafting medical inquires to employees that are reasonable and narrowly tailored. For example, any medical inquiries of employees who are returning from countries like Sudan or South Africa, who would not have been exposed to the Ebola outbreak, would be discriminatory and unlawful. Additionally, questions that are either intended to, or that reasonably might, elicit medical information unrelated to Ebola also would be strictly prohibited.

The CDC’s guidance, again, is helpful in deciding what steps might reasonably be taken once an employer has completed its medical inquiry and perhaps determined that there was some potential risk, but no known exposure to Ebola. Employers that overreact, and take unnecessary punitive action against employees out of a generalized and unsubstantiated concern that the employees might have been exposed to the Ebola virus, run the risk of being sued for discrimination under the ADA.

As of November 19, 2014, CDC guidance states that individuals should not be quarantined or barred from work or school simply because they have traveled to an Ebola-affected region.¹³ However, the CDC does classify every individual who has traveled to a country with “wide-spread” Ebola transmission, and who has returned to the U.S. in the last 21 days, as being “low (but not zero) risk,” even if he or she had no known exposure to the Ebola virus.¹⁴ Moreover, while the EEOC generally has taken the position that temperature monitoring is a “medical examination” under the ADA that can be off-limits to employers, the CDC has stated that twice-daily temperature screenings is recommended protocol for some people returning from Ebola zones.

Considering the employee protections provided by the ADA in light of the CDC’s medical guidance, an employer probably cannot justify an automatic suspension from work for all employees who have traveled to Guinea, Liberia, and Sierra Leone, and such a suspension may well be deemed a violation of the ADA. However, requiring regular temperature monitoring of a “low (but not zero) risk” employee who has recently returned from an Ebola-affected area is probably “job-related and consistent with business necessity” and, thus, not an ADA violation. A somewhat more difficult question is whether an employer can require an employee to submit to a medical exam and provide a fitness-for-duty certification before returning to work. It is unclear whether physicians will be willing to provide such health certifications in light of the Ebola virus’s apparent dormancy period. If the certifications are not available because physicians are generally reluctant to certify any travelers to Guinea, Liberia, and Sierra Leone as being Ebola-free, the certification requirement might be considered the equivalent of an involuntary suspension during the incubation period and could be a violation of the ADA.

Obviously, the issues become even more attenuated when the medical inquiries delve into the health and travel habits of an employee’s household members. The ADA prohibits discrimination against employees based on their relationship or association with disabled individuals.¹⁵ Just like the ADA would prevent an employer from discriminating against an employee because of his relationship with an individual who has a disability like AIDS, an employer cannot discriminate against an employee because he or she has a relationship with someone who might have been exposed to Ebola. Judgments will have to be made, but, again, those judgments must be based on the relevant, credible science.

Certainly, it would be reasonable for healthcare organizations to require all employees (regardless of race or national origin) to report when household members travel to Ebola-hotspots or otherwise learn that they or their household members may have been exposed to someone who had Ebola. Taking more substantial, adverse actions against employees out of a generalized concern that they might somehow have been exposed to Ebola – where that concern is not supported by credible science – might well constitute a violation of the ADA. Regardless of where a particular employer decides to draw a particular line, however, all decisions relating to medical inquiries and examinations should be made based on the science and known facts to ensure compliance with the ADA.

Title VII Compliance

In addition to ADA issues, since the Ebola outbreak is currently confined to specific West African countries (Liberia, Guinea, and Sierra Leone), employers must also be concerned about developing Ebola-related polices that adversely affect employees of African descent. Title VII, 42 U.S.C. §2000e, prohibits employers that have 15 or more employees from treating some employees less favorably than other employees based on the employees’ membership in a protected class, such as race or national origin. The statute provides:
It shall be an unlawful employment practice for an employer -

1. to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
2. to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.¹⁶

Placing an employee on unpaid leave, requiring an employee to use paid-time off or terminating an employee following a return to the United States from one of the countries affected by Ebola clearly constitutes an “adverse” employment action. At the same time, however, not all adverse employment actions are illegal.

The question under Title VII is whether the proposed adverse action constitutes unlawful discrimination; in other words, is the adverse action being taken “because of” the employees’ race, color, or national origin? Unlawful discrimination in violation of Title VII may be proven through either disparate treatment (which requires proof of the employer’s intent to discriminate against the protected group) or disparate impact (which does not require proof of intent, but which requires proof that the employer’s facially neutral policy has a discriminatory effect on a protected class).¹⁷

As an initial matter, to avoid a disparate treatment claim, all policies should be written and applied in a facially neutral manner, rather than being directed solely at minority populations.

Moreover, even though the employer’s policy might be facially neutral and its motivation intended to protect a public health interest, if the proposed policies have a disparate impact on people in a protected class, those actions could violate Title VII.¹⁸ Proof of disparate impact requires a three-step burden shifting approach, through which the plaintiff must prove a prima facie case by showing that a challenged practice has a discriminatory, adverse impact on a protected group.¹⁹ The defendant then must show that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests. Finally, if the defendant meets its burden, the plaintiff must show that the defendant’s interest “could be served by another practice that has a less discriminatory effect.”²⁰

Again, as was true for the analysis of these issues under the ADA, any deviation between the CDC’s recommendations and the employer’s policies could be used by a plaintiff to show that the employer’s interest “could be served by another practice that has a less discriminatory effect.” For example, employees who are protected from discrimination based on their race, color, or national origin probably could not be terminated under a policy that prohibits their travel to Ebola-affected regions since that travel is not prohibited by law and since termination is not necessary to protect the public health interest of the employer.

But what about imposing an involuntary leave of absence during the 21-day incubation period on employees who have visited those countries or who live with someone who has traveled to an Ebola-region? Since the CDC is explicitly not recommending that individuals be quarantined “based on travel history alone,”²¹ an employee who is in a protected class arguably could state a Title VII claim that an involuntary and unpaid leave of absence following his or her return from an affected country (without any other evidence to support direct exposure to someone who had the disease) was not medically necessary or reasonable and that the employer could have protected its public health interest in a more limited way through, for example, regular temperature monitoring of the employee.

Thus, to the extent employers adopt policies that adversely affect employees, and that exceed the recommendations of the CDC or other public health departments, those employers are vulnerable to potential Title VII discrimination claims by employees who are protected from discrimination based on their race, color, or national origin.

Conclusion

Employers should be compliant with the ADA and Title VII if they make decisions based on the best available science and so long as they do not overreact in ways that adversely (and unnecessarily) affect the rights of employees. Moreover, an employer’s sensitivity to the impact of its policies on affected employees, e.g., by providing a paid leave of absence rather than an unpaid one to an employee who has recently returned from a trip to West Africa for the funeral of a close relative, will help ameliorate any potential liability.

¹ Kevin Sackoct, Ebola Victim’s Journey From Liberian War to Fight for Life in U.S., N.Y. Times, Oct. 5, 2014, available at http://www.nytimes.com/2014/10/06/us/ebola-victim-went-from-liberian-war-to-a-fight-for-life.html; see also Associated Press, Friends, Family of Ebola Patient Reach Milestone, The Washington Post, Oct. 19, 2014, available at http://www.washingtonpost.com/national/health-science/friends-family-of-ebola-patient-reach-milestone/2014/10/19/7f9f82b4-57b2-11e4-9d6c-756a229d8b18_story.html.

² 42 U.S.C. § 12101 (1990).

³ 42 U.S.C. § 2000e (1964).

⁴ According to the Equal Employment Opportunity Commission (“EEOC”), “a ‘medical examination’ is a procedure or test that seeks information about an individual's physical or mental impairments or health.” The EEOC lists “the following factors that should be considered to determine whether a test (or procedure) is a medical examination: (1) whether the test is administered by a healthcare professional; (2) whether the test is interpreted by a healthcare professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used.” Equal Employment Opportunity Commission, Notice No. 915.002, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations under the ADA (July 27, 2000) (citing Equal Employment Opportunity Commission, Notice No. 915.002, Enforcement Guidance: Preemployment Disability Related Questions and Medical Examinations under the Americans with Disabilities Act of 1990 (Oct. 10, 1995)).

⁵ 42 U.S.C. § 12112(d)(4)(A)(1994); 29 C.F.R. § 1630.14(c)(1998).

⁶ Equal Employment Opportunity Commission, Notice No. 915.002, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations under the ADA (July 27, 2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

⁷ Id.

⁸ Equal Employment Opportunity Commission Guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009), available at http://www.eeoc.gov/facts/pandemic_flu.html.

⁹ Id.

¹⁰ Id.

¹¹ Centers for Disease Control and Prevention, Advice for Colleges, Universities, and Students about Ebola in West Africa (Nov. 19, 2014), available at http://wwwnc.cdc.gov/travel/page/advice-for-colleges-universities-and-students-about-ebola-in-west-africa.

¹² Centers for Disease Control and Prevention, Epidemiologic Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus (Nov. 19, 2014), available at http://www.cdc.gov/vhf/ebola/exposure/risk-factors-when-evaluating-person-for-exposure.html.

¹³ Centers for Disease Control and Prevention, Advice for Colleges, Universities, and Students about Ebola in West Africa (Nov. 19, 2014), available at http://wwwnc.cdc.gov/travel/page/advice-for-colleges-universities-and-students-about-ebola-in-west-africa.

¹⁴ CENTERS FOR DISEASE CONTROL AND PREVENTION, EPIDEMIOLOGIC RISK FACTORS TO CONSIDER WHEN EVALUATING A PERSON FOR EXPOSURE TO EBOLA VIRUS (Nov. 19, 2014).

¹⁵ The ADA prevents an employer from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).

¹⁶ 42 U.S.C. § 2000e-2(a).

¹⁷ Int’l. Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335, n. 15 (1977).

¹⁸ 42 U.S.C. § 2000e-2(k).

¹⁹ In the 2014 Term, the Supreme Court of the United States is considering a housing discrimination case, Tex. Dep’t. of Hous. & Cmty Affairs v. The Inclusive Communities Project, Inc., 747 F.3d 275 (5th Cir. 2014), cert. granted, 2014 WL 4916193 (Oct. 2 2014), that could affect a plaintiff’s ability to prove disparate impact discrimination under the Fair Housing Act. It does not appear, however, that the Court is likely to reject disparate impact cases in their entirety, so employers should continue to avoid adopting facially neutral policies that have a disparate impact on employees in a protected category.

²⁰ Id.; see also Ricci v. DeStefano, 557 U.S. 557, 624 (2009).

²¹ Centers for Disease Control and Prevention, Advice for Colleges, Universities, and Students about Ebola in West Africa (Nov. 19, 2014), available at http://wwwnc.cdc.gov/travel/page/advice-for-colleges-universities-and-students-about-ebola-in-west-africa.