Polsinelli presents Crisis Management: a multi-part series (culminating in a webinar on 11.20.2014) on what companies must know to stay ahead of external interruption that risks serious impact to their business concerns. Third in this series, the Labor and Employment practice explores how to keep employees safe, healthy, and productive:
For employers, dealing with the Ebola "crisis" is not as theoretical as it has been made out to be. There are already a number of laws, regulations, and guidance in place to help pave the path for employers. This country has faced other situations from which we can glean insight, such as the SARS virus, MERS virus, H1N1 flu, HIV, and the bird flu. However, complying with every law implicated by Ebola can create possible conflicts that need to be identified and managed. Fortunately, in a place where there have been only a handful of confirmed cases of Ebola, and only three of them originating in this country, most employers are not likely to see a situation where they must choose which law to follow. Nevertheless, if employers panic and act without thinking (or without consulting legal counsel), they can find themselves down a path filled with legal risks.
One of the first concerns employers have when planning for any crisis, including Ebola exposure, is how to keep their employees safe, healthy, and productive.
The Occupational Safety and Health Act of 1970 ("OSHA") is the place to start. As a general matter, OSHA requires employers to provide a workplace free from serious recognized hazards and to comply with OSHA's specific standards, rules, and regulations. Companies employing workers who, as part of the job, have direct access to the virus or people with the virus, such as scientists and healthcare workers, are already required to implement and adhere to specific OSHA standards. To the extent employers are implementing new or heightened standards, they should remember to evaluate pay practices for continued compliance with wage and hour laws, e.g. donning and doffing concerns.
What can other employers do? How can a low-risk employer protect its workers without potentially violating other laws?
Seemingly innocent notions intended to protect employees (such as taking employee temperatures, keeping employees home, or surveying family origins) can actually create risk for employers if they do not understand how the different laws intersect and if they do not ask the right questions before taking action. Our current legal framework provides guidance in this area.
One such legal framework is the Americans with Disabilities Act or "ADA." The ADA prohibits discrimination against qualified individuals with an actual disability, as well as individuals who are "regarded as" having a disability. By treating an employee as though they have the virus, when they may not, the employer may be "regarding" the employee as disabled. The ADA also prohibits disparate treatment "because of the known disability of an individual with whom the [employee] is known to have a relationship or association"—i.e., associational disability. All of these prohibitions must be considered before an employer takes actions on the basis of keeping its other employees safe—such as quarantining an employee. Moreover, supervisors and co-workers can create liability by harassing employees they think (even ignorantly) may have been exposed to Ebola.
The ADA's limitations may conflict with OSHA's requirement to provide a safe and hazard-free workplace. For example, the ADA also prohibits tests that "screen out or tend to screen out" an individual with a disability unless the test is "job related" and "consistent with business necessity." However, the ADA creates an exception for employees who "pose a direct threat to the health or safety of the individual or others in the workplace." A "direct threat" is 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."
The Equal Employment Opportunity Commission (EEOC) has not provided guidance yet on whether an employee with Ebola (or at risk for contracting Ebola) constitutes a "direct threat," but its opinion regarding pandemic influenza provides insight. In its 2009 guidance, "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," the EEOC opined that "[i]f the CDC or state or local public authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, [if such agencies] determine that pandemic influenza is significantly more severe, it could pose a direct threat." The EEOC advises employers to rely on the CDC and state and local authorities for guidance.
Employers may be required to grant employees with Ebola or who have a family member with Ebola a requested leave of absence and provide job protection under the Family Medical Leave Act ("FMLA"). Although the FMLA does not require such leave to be paid, the ADA may require employers to allow the use of accrued paid leave and leave beyond 12 workweeks as reasonable accommodations.
Inquiries by employers of their employees regarding travel history, family origins, and risk for contracting Ebola or other pandemic diseases or illnesses can also implicate concerns under Title VII of the Civil Rights Act ("Title VII") and the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Title VII can be implicated if employers treat employees differently just because they are from an affected foreign nation. Health screenings often seek family health history information, which may violate GINA.
Employers who double as places of public accommodation may find themselves facing additional challenges related to the Ebola crisis. They have a duty to protect members of the public entering their facilities from hazards, but they are also limited by the constraints of the ADA. For example, places of public accommodation may not use eligibility requirements that exclude or segregate individuals with disabilities, unless the requirements are necessary for the operation of the public accommodation. However, safety requirements may be imposed on members of the public if necessary for the safe operation of a place of public accommodation.
Of course, turning a blind eye in the face a crisis is not recommended. Not only can doing nothing negatively impact business operations and create potential OSHA violations, but doing nothing also can create further liability, such as negligence claims by employees who contract Ebola from co-workers.
One thing that employers can do to address the issue and achieve compliance with applicable laws is provide training and education. Employers should educate themselves and their employees regarding the signs and symptoms of Ebola and plan coordination with local and state officials regarding symptomatic individuals. Employers can educate and train their employees regarding infection-control practices, such as regular hand-washing and proper containment of germs. In addition to staying up-to-date on news from the CDC and local health agencies, employers should be mindful of government mandates as they develop, such as New York and New Jersey's protocols for West Africa travelers, and proposed legislation in Ohio requiring employers to pay quarantined employees.