Parents at a Mississippi school frantically pulled their children from class last week, having learned that the principal had traveled to Zambia, a central African nation roughly 4,000 miles from the nearest Ebola-stricken region of West Africa, more than the distance between New York and Anchorage, Alaska. A resident of Louisville, Kentucky has virtually quarantined herself at home, having learned that a nurse in the Dallas hospital where an Ebola patient died had flown to Cleveland, more than 300 miles from her house. An impromptu, panic-driven industry in biohazard protective gear has arisen overnight offering all manner of Ebola protective gear from “Deluxe Face Masks” to “Fully Encapsulating Ebola Suits.”
Widespread fear of an invisible, poorly-understood disease is understandable, and public overreaction to the handful of Ebola cases confirmed outside of West Africa was probably inevitable. But while Hollywood-style Contagion scenarios are exceptionally unlikely to materialize, public paranoia is already very real.
The “public,” by the way, includes employers’ workforces. The expressions of employees’ unfounded fears of Ebola – for example, refusing to work with a colleague that has traveled in an area that, rightly or wrongly, may be associated in employees’ minds with Ebola – is more than just an inconvenience to employers. Those fears may implicate an employer’s obligations under a number of employment laws, not the least of which are disability discrimination laws prohibiting differential treatment based on a perception of someone’s physical condition.
So, what does the fear pandemic look like in your workplace?
SCENARIO # 1:
“My African vacation was terrific!” An employee just returned from a trip to West Africa. Can you require him to stay home, essentially quarantined, for 21 days?
The inquiry here is one of reasonableness. The Americans with Disabilities Act (“ADA”), which prohibits discrimination based on actual or perceived disability, also prohibits employers from excluding employees from the workplace for health or safety reasons unless they pose a “direct threat.” As of now, the Center for Disease Control (“CDC”) has issued guidance providing that Ebola is only transmitted through contact with blood and other bodily fluids of an infected person. Thus, there is a low risk of transmission, even for travelers visiting affected areas. Employers should avoid taking action based on unreasonable concerns to avoid exposing themselves to claims of discrimination against employees “perceived” as disabled.
Employers should avoid categorically requiring employees returning from African travel to stay home. Concerned employers can guard against the potential spread of disease in the workplace by informing returning travelers of the symptoms to watch out for during the 21-day incubation period: sudden onset of fever, intense weakness, muscle pain, headache and sore throat, followed by vomiting, diarrhea, rash, impaired kidney and liver function, and, in some cases, both internal and external bleeding.
While you can ask employees to be alert to any symptoms surfacing within 21 days after return, requiring employees to undergo a medical examination implicates other legal issues. The ADA only allows employers to make inquiries into medical conditions and require medical examinations where they are job-related and consistent with business necessity, or a reasonable basis exists to believe the employee poses a direct threat. While the CDC and U.S. Department of State have issued travel warnings for Liberia, Sierra Leone, Nigeria, and Guinea, travel to such areas is not restricted. Given the low risk of transmission, requiring a medical examination for returning travelers would likely not be considered a business necessity. The CDC, however, currently recommends individuals who have been in a country where an Ebola outbreak occurred within the past 21 days seek medical evaluation and optional consultation with public health authorities.
Employers must consider the fact-specific circumstances they are presented with while balancing both safety and liability risks. For instance, the employer of an employee returning from Morocco, where to date there have been no confirmed instances of transmission, is not likely to be able to show that any medical testing is necessary prior to having that employee return to work. However, given the CDC guidance, the opposite may be true for an employee returning from Sierra Leone.
Moreover, under the Occupational Safety and Health Act (“OSHA”), employers have a legal obligation to provide a safe workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. §654. Thus, employees can be required to report to their immediate supervisors any situation presenting a danger to themselves or their co-workers. The Equal Employment Opportunity Commission (“EEOC”) has also accepted that in such instances inquiring about communicable diseases may be legitimate, so long as employees being questioned are not required to identify the specific illness with which they may be afflicted.
- Temper and carefully consider communications to employees to avoid violating any laws or creating unnecessary panic in the workplace.
- Require employees to report dangerous hazards – be sure not to require identification of an employee’s specific diagnosis or illness.
- Know when you can lawfully inquire into an employee’s medical conditions.
- Ensure all medical inquiries are job-related and consistent with business necessity.
- Maintain medical information provided by employees confidential.
“I’m using PTO to visit my family”: An employee who recently emigrated from an African nation requests a vacation “to visit relatives.” Can you ask for more information about where she’s going to determine if her travel involves an at-risk area? If she’s going to West Africa, can you deny the vacation request?
Tread lightly. The essence of a national origin discrimination claim is differential treatment based on national origin. Employers should avoid making unfounded assumptions about an employee’s national origin, or acting on those assumptions if the result is to treat the employee differently from others with respect to a term or condition of employment. For example, requiring employees to jump through additional hurdles to get approval for vacation or subtly suggesting they “take an extra three weeks off” once they return to the U.S. may expose employers to liability for race or national origin discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), and/or claims of subsequent retaliation against employees who complain about discriminatory practices.
The key is to focus not on the individual, but on the travel, and to adopt a policy that applies to all employees. If an employee indicates that she is traveling to an area where there is a legitimate concern about Ebola – meaning a part of the world where Ebola cases have actually been confirmed – an employer has a legitimate basis to ask for clarifying information. But as with Scenario #1, above, in the absence of a clearly articulable, concrete, specific concern, an employer should leave well enough alone and not interfere with its employees’ vacation plans.
- Adopt and enforce policies requiring employees to disclose travel to affected areas with heightened risks of transmission of communicable diseases. Be sure to apply policies uniformly to all employees.
- Seek the advice of counsel prior to taking any disciplinary or other adverse actions against employees who do not comply with established policy.
SCENARIO # 3:
“I volunteered in Sierra Leone”: Now consider this unlikely scenario - you learn the returning traveler from Scenario #1 above actually volunteered at a healthcare facility treating individuals infected with Ebola, thus significantly increasing the risk of transmission.
Before requiring the employee to stay home for 21 days, be sure there exists a direct threat or significant risk of substantial harm to the health and safety of others that cannot be eliminated or reduced by reasonable accommodation. Under the ADA, the individualized assessment must be based on objective and up-to-date medical knowledge. In assessing the existence of a direct threat, employers should consider the duration of the risk, as well as the nature, severity, likelihood, and imminence of the harm. Given the severity of the symptoms and rate of mortality associated with Ebola infection, a person reasonably thought to have been exposed to the virus would likely constitute a direct threat to others in the workplace under the ADA standards and a required 21-day mandatory leave period would likely be deemed reasonable under the ADA.
If an employee is actually infected, Ebola would almost certainly qualify as a “disability” under the ADA, as amended by the ADA Amendments Act (“ADAAA”), which allows for “temporary impairments” to qualify as a disabilities where they are sufficiently severe to substantially limit a major life activity. Thus, an Ebola diagnosis would likely impose obligations on employers to engage in the interactive process and provide reasonable accommodations, such as allowing an employee to work remotely during the incubation period or take medical leave.
Similarly, Ebola would also likely qualify as a “serious health condition” under the Family and Medical Leave Act (“FMLA”), and an employee who either contracted the disease themselves or whose spouse, child or parent may have contracted the disease will likely be entitled to up to twelve (12) weeks of unpaid leave. Additionally, employees who become infected with Ebola, or any other communicable disease for that matter, may be entitled to disability benefits or worker’s compensation, to the extent transmission was the result of occupational exposure.
While there is little reason to anticipate widespread transmission of Ebola within the U.S., assessing the appropriate actions in such instances requires a cautious balance of risk.
- Promptly report symptoms and cooperate with the relevant authorities.
- It may be necessary to share information with employees for the protection of their health and safety. In doing so, respect the medical privacy of an infected employee to avoid potential violations of the Health Information Portability and Protection Act (“HIPAA”) or the Genetic Information Nondiscrimination Act of 2008 (“GINA”).
SCENARIO # 4:
“I am hysterically risk-adverse”: An employee refuses to attend a scheduled meeting in Dallas after the first confirmed U.S. transmission of Ebola. Another employee refuses to report to work after driving near the Maryland hospital treating an Ebola patient. Yet another employee refuses to work with the returning traveler from Scenario #1 above. What is an employer to do?
Employees have the right to remove themselves from a work situation that they reasonably believe presents an imminent and serious danger to their life of health. It is unlikely that the above scenarios involve a such a reasonable risk. Unlike influenza, the Ebola virus is not airborne and, to date, the only confirmed transmissions of Ebola within the U.S. involved two healthcare workers actually assisting in the treatment of an Ebola patient who contracted the virus in Liberia.
Absent such a reasonable belief, an employee is not excused from reporting to work. In instances where no reasonable risk of exposure exists and employees are clearly abusing company policy or engaging in other misconduct, employers should follow established procedures for progressive discipline, up to and including termination.
- Consider restricting business-related international travel to affected areas.
- Consult airport and Federal Aviation Administration (“FAA”) travel information and advisories before asking an employee to travel near, to, or through affected areas.
- Be sure to distinguish between circumstances giving rise to reasonable risk, as opposed to responding to unfounded hysteria.
- Follow progressive disciplinary procedures for misconduct and policy violations.
SCENARIO # 5:
“We are really worried”: A group of employees are discussing the company’s inadequate response to the threat of Ebola exposure. You consider squashing the conversation before the unnecessary panic rises any higher.
Be cautious, and balance a desire to tell employees to “keep calm and carry on” (i.e., shut up) with your obligations under federal labor law. The National Labor Relations Act (“NLRA”) protects employees who engage in “protected concerted activity,” including discussions or complaints of workplace conditions. Similarly, a group of employees refusing to show up for work because of workplace safety concerns may also be protected under the NLRA. In such instances, discipline or termination of the employees could lead to an unfair labor practice charge. Employees expressing a safety concern are also protected from retaliation under OSHA, which prohibits employers from taking disciplinary or other adverse action against an employee unless the employer can objectively establish that no such hazard exists or that a response plan is in place to reasonably protect employees from exposure to the disease. Employers should, thus, avoid taking any actions against the employees in question that may be perceived as retaliatory.
- Be prepared to address employee questions and concerns about workplace safety.
- Be cautious to not discourage open dialogue about legitimate concerns.
Again, while there is currently little need for U.S. employers outside the healthcare or related medical and emergency response industries to take any action at this point, the following are suggestions for the prudent employer:
- Educate employees about the current low risk of transmission, the methods of transmission and prevention of exposure, as well as the related symptoms.
- Encourage employees to promptly report potential symptoms or other hazards.
- Review relevant EEOC, OSHA, and CDC guidance and standards.
- If you are a healthcare employer, review, update, and distribute infectious disease protocols.
- Consult with counsel before taking any disciplinary or other adverse disease-related actions against any employees.
Kelley Drye will continue to monitor developments in this fast-changing landscape.
For further information on this advisory, please contact:
Mark A. Konkel
Robert I. Steiner