Employment, Benefits & Labor
Call to Action: It is critical that employers begin to consider the important issues that the Ebola outbreak raises about preparedness, protocols and workplace safety in order to be ready for any potential outcome. This is not a time for panic, but rather employers should be monitoring the situation as it evolves.
The current outbreak of the Ebola virus in West Africa is now being considered an international health emergency by the World Health Organization. For the moment, the threat of an Ebola outbreak in American workplaces remains low, particularly given that the disease is only transmitted by direct contact with blood or bodily fluids.
The Occupational Safety & Health Administration has issued interim general guidance about Ebola control and prevention that highlights the increased risk of infection for healthcare, airline, travel, mortuary, laboratory, and emergency response workers. Employers in these professions should be sure to fully brief their employees, implement appropriate protocols, and require adequate protective measures as recommended or required by the Centers for Disease Control.
For all other workplaces, the most substantial risk of Ebola relates to travel by employees because there is not currently a ban on travel to and from West Africa. The Equal Employment Opportunity Commission ("EEOC") has not yet issued applicable guidance to employers dealing with Ebola concerns. During the H1N1 flu pandemic in 2009, however, the EEOC issued guidance on workplace preparedness and the potential impact of the Americans with Disabilities Act ("ADA"), which is instructive. The ADA limits employers' abilities to make medical inquiries or require medical exams. For this reason, it is unlikely that an employer can require an employee to get a medical examination or otherwise be tested for Ebola. Employers are, however, permitted to exclude employees from the workplace when they pose a "direct threat." Thus, in accordance with the EEOC's previous guidance, an employer can:
ask an employee about their travel plans;
ask an employee if they are experiencing symptoms (but must keep this information confidential);
send home an employee that is displaying symptoms;
require employees to adopt infection-control practices, such as regular hand washing; and
make a determination that as an infection-control prevention method, employees can or are encouraged to telecommute.