Ebola– What Employers Can or Should Do As the Threat Grows

Recent news of three confirmed cases of the Ebola Hemorrhagic Fever (Ebola) in the United States (Dallas, Texas) -- with one fatal case -- has caused citizens to question what will happen if the disease comes to their hometowns. Employers have become particularly concerned about the impact an Ebola epidemic may have on their overall business operations and the management of their employees. Although there is little evidence at this time to suggest that the outbreak in Dallas will move to other parts of the country, employers would be well served to become familiar with the Ebola disease and develop a plan to deal with any issues that might be presented by a broader outbreak.

Ebola is a rare and deadly disease, which manifests itself in humans within 2-21 days (with an average of 8-10) following an exposure incident. Symptoms of the disease initially mirror common and acute influenza, i.e., low grade fever, severe headache, muscle pain, lethargy, diarrhea, vomiting and stomach pain. However, progression of the disease results in an extremely high fever and blood in the stool, vomit, eyes and gums. There is no FDA-approved vaccine or antiviral drug available to combat Ebola. Experts suggest a mortality rate of around 71%.

Concern over this life-threatening disease has caused employers to question what actions they can or should take to ensure the health and safety of their employees. The prospect of making a mistake often paralyzes employers with worry and results in a potentially unreasonable wait-and-see approach. However, as with most business decisions, the best approach is to be proactive. Thus, employers should act now and develop a policy to manage employees when it is believed they have been exposed to Ebola.

Where to Find Guidance

The Occupational Safety and Health Administration (OSHA) has issued Ebola-specific information, identifying high risk occupations¹ and providing guidance regarding the virus itself, hazard recognition, medical information and control/prevention of Ebola. OSHA’s guidance also references specific standards for protecting workers from Ebola when they work in high hazard professions. These standards are not new and mirror what is currently being recommended by the Centers for Disease Control (CDC). These protections include the use of respirators and other personal protective equipment, as well as management of exposure to blood and other potentially infectious materials. OSHA also identifies hazardous chemicals that may be used in the clean-up of contaminated waste and provides guidance on how to safely work with such chemicals.

The CDC also provides significant guidance to employers and the general public on Ebola. Employers should visit the CDC website and become familiar with the current status of the outbreak, signs, symptoms and protocols for addressing threats of this disease.

Finally, various state departments of health provide guidance to employers and the general public on how incidents of Ebola will be handled if they present in those areas. Therefore, it is wise for employers to review the available state health agencies’ websites.

What to Do If an Employee May Have Been Exposed to Ebola

Employers may be concerned that any action they take to restrict an employee from engaging in work due to a credible threat of exposure to Ebola will result in claims of discrimination under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, as amended, and/or state anti-discrimination laws. In particular, employers may worry that if they take action to keep a potentially infected employee out of the workplace, the employee will claim he/she was unlawfully “regarded as” disabled or targeted because of his/her African heritage. Employers may also be concerned that such adverse employment action, if not handled discretely, will result in a claim of defamation. However, on the flip side, employers may face claims of negligent supervision and/or failure to provide a safe workplace if they are aware that an employee has been exposed to Ebola and could infect co-workers or customers, but do not take reasonable steps to protect them. So, what can an employer do?

Whether an employee should be removed from the workplace, and for how long, will depend greatly on the nature of the work the employee is performing, as well as the specific circumstances (i.e., the risk of exposure to Ebola). Employers may, however, take action to exclude/remove individuals from the workplace for safety and health reasons that pose a significant risk of harm to the health or safety of the individual or others and cannot be eliminated or reduced by reasonable accommodation. In other words, employers may take action to exclude/remove employees where they pose a “direct threat.” The Equal Employment Opportunity Commission has said that if an employee poses a direct threat he/she is not protected by the ADA.

For example, if an employee is coming back from West Africa where the area is considered highly infected with Ebola, the employer may ask questions about the level of the employee’s exposure to Ebola. If the level of exposure is found to be direct or otherwise unacceptable, the employer may postpone the employee’s return to work during the incubation period. This action would be especially prudent if the employee would be working in food service or with children, the elderly or immune-compromised clients. If acceptable to the employer, the employee may even be paid for the time away during the incubation period to avoid any claim that the employee has lost wages. The employee may also be required to obtain a fitness for duty to return to work, to ensure that any direct threat has been removed.

As for businesses that are not dealing with children, the elderly, the sick or food preparation, employers may want to simply follow their existing general infectious disease policies. They may even revisit their infectious disease policies to determine if they need some editing, given that most employers have not reviewed these policies since 2009, when H1N1 influenza was in the news. Ebola is different from H1N1 because of the mortality rate and the fact that employees may not become symptomatic with Ebola. However, an infectious disease policy is a good place to start.

It is also prudent and reasonable to require employees to complete a questionnaire regarding their travel to West Africa or exposure to individuals who are believed to have come in contact with Ebola. A questionnaire is non-invasive and consistent with requirements now being imposed by the federal government for travelers into the U.S. It is also, arguably, consistent with OSHA standards requiring employers to conduct general assessments of any hazards that may exist in the workplace (see 29 CFR 1910, General Industry Standards and OSHA’s new Ebola guidance). Further, there may be specific state regulations and laws or local ordinances that address potentially infectious diseases. These laws and regulations may provide additional support to employers for mandatory medical examination and clearance to engage in work.

Finally, if an employee refuses to provide the requested information about his/her exposure or takes exception to obtaining a fitness for duty to engage in work, employers should contact legal counsel for further guidance.