Bloomberg BNA Daily Labor Report - June 8, 2015
Potential Ebola virus exposure is a concern that strikes fear in many. Employers may be confronted—if they have not been already—with difficult managerial decisions that must address employees' rational—or irrational—fears of exposure to the Ebola virus, while remaining mindful of federal and state anti-discrimination and workers' protection laws, including Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and the Occupational Safety and Health Act.
This article discusses the role that U.S. governmental guidance plays in monitoring the spread of the Ebola virus, resources that are available to employers to prepare for difficult employment decisions, and legal hazards associated with prohibiting employees from coming to work because of the fear that they may have been exposed to the Ebola virus.
It concludes by recommending six employer best practices for handling Ebola-in-the-workplace concerns.
Current Status of the Outbreak
There were four cases of the Ebola virus in the United States in 2014. It's been many months since the last patient in the United States tested positive for the virus.
According to the Centers for Disease Control and Prevention (CDC), this means that the United States is outbreak free. Despite this positive news for the United States, the countries of Guinea, and Sierra Leone still have widespread transmission. The status of countries affected by the Ebola virus is subject to change and governmental guidance on the virus is frequently updated.
This is the time for employers to take a step back and evaluate their policies for managing infectious disease situations before a critical need arises, so that best practices and rational responses are immediate.
Employers Could Face These Issues
Although the probability of contracting Ebola in the United States is very small at the moment, employers should anticipate workforce concerns about the risk of exposure.
These concerns may manifest in different ways and can threaten the productivity of a business. If a business does not take a thoughtful approach toward addressing these concerns, it may place itself at risk for claims of unlawful discrimination.
It is wise for employers to proactively imagine difficult scenarios and determine how they would respond to them. It is also wise for employers to be able to point to credible sources that can calm employees' fears about Ebola.
One scenario that has popped up frequently in companies after the first Ebola patient was diagnosed in Dallas in late September is as follows:
An employee is returning to the United States after a trip to Africa. Co-workers of the employee do not want the employee to return to work for 21 days, the incubation period for the Ebola virus. The co-workers tell their employer that if the employee is permitted to return to work before 21 days they will not come to work. If the co-workers do not come to work, business operations will be severely interrupted.
This scenario presents many issues for the employer and requires careful thought, and there are critical pieces of information missing. Let's break it down: First, the employee is returning from Africa, but the employer does not know if the employee traveled to a country in West Africa with widespread Ebola transmission. Second, the scenario does not indicate whether the employee had any contact with anyone exhibiting Ebola symptoms. Third, there is no evidence that the employee is sick or poses a direct threat to other employees. Fourth, the employer does not know why the employee traveled to Africa.
What is the employer to do? It seems stuck between a rock and a hard place: If the co-workers refuse to come to work, productivity and profitability could be severely compromised and/or operations could grind to a halt. But if the employer tells the employee to stay home, the employer may be unlawfully discriminating against the employee. It is unlawful for an employer to discriminate on the basis of race, color, national origin, disability or perceived disability, and preventing the employee from coming to work as usual opens the employer to claims of discrimination.
The key to lawfully navigating this quagmire of risks rests in understanding, abiding by, and taking comfort in the guidance issued by the U.S. government in response to the Ebola virus outbreak.
Consult Guidance from the Government
An employer's first stop for Ebola-related guidance—before any employment decisions are made—should be the CDC website. An employer should not unilaterally decide that an employee is at risk for Ebola. If the employee is indeed at risk, the CDC will dictate how the employee can interact with the public, including whether the employee can go to work.
The CDC has implemented a detailed methodology for identifying individuals who may be at risk for developing the Ebola virus, and based on risk levels, it has systems for monitoring, and, in certain circumstances, regulating the movement of such individuals. For more information on the CDC's regulations, look to http://www.cdc.gov/vhf/ebola/exposure/monitoring-and-movement-of-persons-with-exposure.html.
The second stop for employers should be state and local authorities' guidance on managing the Ebola virus risk. State and local authorities may impose a greater level of restriction than the federal CDC guidance. But again, these health authorities manage Ebola risk assessments and restrictions, not the employer.
The third stop for employers should be the Department of Justice website, which provides guidance on protecting and ensuring civil rights while responding to the threat of the Ebola virus http://www.justice.gov/opa/pr/justice-departments-civil-rights-division-issues-non-discrimination-principles-guide-federal. A DOJ publication from December states that “[u]nfounded fears about possible exposure to Ebola based on assumptions about a person's race, national origin, or perceived disability status raise concerns about discriminatory treatment.”
In the context of employment, the DOJ provides the following example: “If an employer refuses to hire a qualified individual, prohibits an employee from reporting to work, or changes the employee's work assignments because that employee is from an African country or of African descent out of a fear that the employee has Ebola, despite the fact that the employee is not at risk for Ebola exposure, as determined by public health authorities in accordance with CDC guidance, the employer may be discriminating against the employee based on race, color, national origin, or perceived disability.
Similarly, if an employer causes or allows a hostile work environment involving Ebola-related harassment or discrimination, that employer may be in violation of its legal obligations.” For more information on the DOJ's guidance, look to http://www.justice.gov/opa/pr/justice-departments-civil-rights-division-issues-non-discrimination-principles-guide-federal.
Employers Must Beware of Legal Hazards
There are several federal employment laws that control employers' interactions with their employees and applicants, including Title VII, the ADA and OSHA. In addition, state anti-discrimination and employment laws may also apply.
Title VII. Title VII prohibits employment discrimination on the basis of race, color, religion, sex and national origin. As the DOJ highlights, treating an employee or applicant differently because of assumptions about their race, color or national origin is unlawful and treating an employee or applicant differently because of perceived or speculated Ebola virus exposure may violate Title VII.
ADA. The Americans with Disabilities Act prohibits discrimination against a qualified person with a disability. Employers must make reasonable accommodations for qualified individuals and may not make disability-related inquiries of their employees or applicants, but an exception to these requirements applies if the employee or applicant presents a direct threat to other employees. “Direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”
In 2009, the Equal Employment Opportunity Commission released guidance on how employers could legally manage the H1N1 flu pandemic with their employees (86 DLR A-6, 5/7/09). This guidance provides insight as to how the EEOC may interpret the legality of an employer's response to managing the Ebola virus.
The EEOC's H1N1's guidance states that during employment, “[t]he ADA prohibits employee disability-related inquires or medical examinations unless they are job-related and consistent with business necessity,” and this standard generally is only met if the “employer has a reasonable belief, based on objective evidence, that: [a]n employee's ability to perform essential job functions will be impaired by a medical condition; or [a]n employee will pose a direct threat due to a medical condition.” Importantly, the guidance states that “the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a ‘direct threat’ (i.e., a significant risk of substantial harm even with reasonable accommodation).”
OSHA. The Labor Department's Occupational Safety and Health Administration requires employers to take steps to keep employees safe at work. An employer has a general duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA indicates that this would include taking steps to prevent exposure to the Ebola virus in the workplace. In the realm of Ebola preparedness, OSHA states that “most workers in the U.S. are unlikely to encounter Ebola virus or individuals with Ebola Hemorrhagic Fever (EHF),” but it goes on to state that exposure may be more likely in certain specialized sectors. OSHA's website contains numerous standards that may be applicable to Ebola virus situations, including OSHA's Bloodborne Pathogens standard, Respiratory Protection standard and Personal Protective Equipment standard.
Further, the OSHA website has issued general guidance for “workers whose work activities are conducted in an environment that is known or reasonably suspected to be contaminated with Ebola virus,” and the OSHA website should be consulted for more specific requirements: https://www.osha.gov/SLTC/ebola/control_prevention.html.
The laws and agency regulations discussed above are just the tip of the iceberg and each contains detailed provisions. If an employer has concern over the legal implications of specific measures it has implemented or is considering implementing, the employer should contact an attorney specializing in employment and labor law matters.
Take Proactive Approach to Best Practices
As with many potential employment issues, the best approach is to proactively anticipate and head off difficult employment situations before they negatively affect the business. Below are six suggestions for employers to reduce the impact of Ebola fears in their workplaces:
1) Review your handbooks and policies. Employers are encouraged to review their employee handbooks and operational policies. These documents should include epidemic response protocol, which contemplate the method by which an employee can voice his or her concerns to management, the institutional policy for absences, and language indicating that the company will defer to regulations, and guidance issued by local, state and federal government when responding to epidemics.
2) Rely on governmental guidance. Employers should rely on governmental guidance, including the CDC and state and local regulations. To avoid discrimination allegations, the DOJ advises employers that “public health authorities in accordance with CDC guidance” are responsible for determining if a person poses a risk to others. It is inappropriate, and potentially unlawful, for an employer to fill this governmental role.
3) Educate workers. Education often curbs irrational fears. A substantial amount of literature has been published about how Ebola is transmitted and about the risk of Ebola virus exposure. The CDC website provides detailed information, as well as numerous downloadable factsheets about Ebola. If workers have Ebola concerns, employers should educate them about how Ebola is spread, directing them to CDC and other federal, state and local guidance.
Employers should inform their employees that they have a policy in place to manage epidemic situations and let employees know that the company is closely following updated governmental guidance. If workers refuse to come to work out of concern, the company should advise them that they may take vacation days or personal days or request an alternative work schedule, as permitted by their employment agreement or company policy, but that unexcused days from work may be grounds for discipline.
4) Educate supervisors/employers. Companies should educate their supervisors and management about the company's Ebola policy, governmental resources, and employment anti-discrimination laws. It is advisable to designate a human resources representative to deal with all Ebola-related questions and concerns and to instruct employees to refer questions to this representative.
5) Devise an epidemic operational plan. As with all epidemics and pandemics, such as the flu or other illness, employers should consider how they would continue operations if individuals in the workforce were to fall ill.
6) Consult with an attorney. Managing employees' Ebola fears is a complex matter that must address the emotional concerns of employees and uphold the legal responsibilities of employers. Different scenarios may require employers to react differently. While remote working may be an option in certain circumstances, it may not be feasible in others.
While unpaid time off may be an option in certain circumstances, it may not be in others. The list goes on. Before a crisis presents itself, employers should consider consulting with an employment law attorney to review the employer's epidemic response policies and protocol.
Epidemic preparedness is a smart business move, and it is important for U.S. employers to be proactive rather than reactive.
“Ebola Fears: Employer Best Practices for Epidemic Preparedness,” by Brooke T. Iley and Anna D. Stockman was published in the June 8, 2015, edition of Bloomberg BNA Daily Labor Report. Reproduced with permission from Daily Labor Report, 109 DLR I-1, 6/8/15. Copyright © 2015 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.
