Ebola In The Workplace
Media reports of the Ebola outbreak in West Africa, along with the infection of two nurses in Dallas, have raised fears of the potential spread of Ebola in the United States, and employers are increasingly concerned about what they should do to address the possibility of Ebola in the workplace. While the risk of someone’s contracting Ebola may be small, the highly infectious nature of the disease and its high mortality rate militate a thoughtful response. Drawing on resources from the Centers for Disease Control (CDC), the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA), we offer guidance on the legal issues and practical suggestions for developing an Ebola policy or procedure.
The CDC has an Ebola webpage on its website, containing a number of documents relevant to the Ebola outbreak and its impact on U.S. citizens. At this time, the CDC has issued a Level 3 Travel Notice for Guinea, Liberia and Sierra Leone, meaning that all non-essential travel to those areas should be avoided. The CDC has also issued a lower level Travel Notice for the Democratic Republic of the Congo (a Travel Notice for Nigeria has now been pulled). No other countries have yet been identified by the CDC as being of concern.
Any possible infection arises from exposure to the Ebola virus. According to the CDC, exposure to the Ebola virus includes the following:
- Touching a person who was sick with or died of Ebola
- Touching items that may have been in contact with an infected person’s blood or bodily fluids (urine, saliva, sweat, feces, vomit, and semen)
- Caring for or staying with someone who is sick with Ebola
- Spending a long time within 3 feet of someone who is sick with Ebola (including during travel)
- Coming in contact with animals (such as bats and monkeys) or with raw or undercooked meat
- Visiting a hospital where Ebola patients are being treated
Exposure to the Ebola virus does not mean that the person will become infected. There is a 21-day incubation period following exposure, during which time an infection may develop. If any signs of infection manifest, the individual must seek immediate medical treatment. The signs of Ebola infection include:
- Fever of 101.5 or more
- Severe headache
- Muscle pain
- Stomach pain
- Unexplained bleeding or bruising
In its Level 3 Travel Notices for the countries identified above, the CDC recommends that an individual who has been exposed to the Ebola virus contact his or her doctor. The doctor should evaluate the individual’s exposure level and consult with public health authorities to determine whether any actions, such as medical evaluation and testing for Ebola, monitoring, or travel restrictions, are needed.
In addition, the CDC recommends that anyone traveling to an area with an Ebola outbreak, even if not exposed to Ebola, should self-monitor for the 21-day incubation period. This means taking his/her temperature every morning and evening, and watching for the other signs of infection.
The Legal Framework
In a webpage discussing Ebola, OSHA states, “Employers must protect their workers from exposure to Ebola virus on the job.” OSHA has identified workers in certain industries as being at risk of Ebola exposure, including healthcare employees. OSHA has developed an Interim General Guidance for workers in these industries, identifying applicable OSHA standards and providing recommendations on infection control and prevention specific to each industry.
While employers in other industries may not be subject to those OSHA standards, they are still bound by the General Duty Clause, which requires employers to maintain a workplace free from hazards that can cause injury or death to workers. OSHA has also issued a Guidance for Workers and Employers in Non-Healthcare/Non-Laboratory Settings on “Cleaning and Decontamination of Ebola on Surfaces.”
For most employers, the issue of exposure in the workplace will typically arise when an employee, or an employee’s family member, returns from travel to a country with an Ebola outbreak. The concern is that these employees may have been exposed to Ebola and might subsequently develop an Ebola infection and thereby infect his or her co-workers. In developing an approach to address this concern, employers must be aware of potential issues under the Americans with Disabilities Act (ADA) and Title VII.
Under the ADA, medical inquiries and examinations are permitted only where they are job-related and consistent with business necessity. Determining whether a person poses a “direct threat,” meaning a substantial risk of substantial harm to the health or safety of him/herself or others, would be a sufficient reason for a medical inquiry or examination. As the EEOC notes in its Interpretive Guidance on the ADA regulations, this determination must be based on “objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes…”
The EEOC has not offered its views regarding Ebola in the workplace. However, in 2009 in in connection with the H1N1 pandemic, it issued a Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which offers some assistance to employers in determining the parameters of appropriate medical inquiry and examinations. There, the EEOC states that employers should look to the latest assessment by CDC or public health authorities, although it acknowledges that the public health recommendations issued by these agencies may change, and may even differ from each other. Under these circumstances, the EEOC stated, “employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”
Further, there may also be discrimination concerns under Title VII, which is potentially implicated whenever an employee is treated differently because of his or her race or national origin. For example, an Ebola policy or procedure that addresses travel generally to the African continent could have a negative and disparate impact based on national origin if employees who are native to countries that are not actually experiencing an Ebola outbreak were treated as “health risks” simply because of traveling “home” (even as we recognize that American-born employees might also be treated as such if they traveled to those same countries without that same legal risk). To reduce risks in this area, it is important to ensure that any Ebola policy is appropriately targeted to accomplish the business need of protecting the workers without being overly broad and that it does not rely on unwarranted assumptions.
What inquiries an employer may make of employees returning from travel?
The EEOC has stated that asking about the location of travel and exposure to infection during the trip is not a medical inquiry, and is therefore not subject to the ADA. Thus, it is permissible for employers to ask about where employees traveled and whether they were exposed to the Ebola virus. Similarly, it would be permissible to ask about the travels of the employee’s household members.
May an employer keep an employee who is not showing symptoms out of work for 21 days (the length of the incubation period)?
Requiring a 21 day mandatory leave, particularly if it is without pay, could be considered an adverse action based and be treated as “regarding” an individual as being disabled. The employer imposing such a requirement must be able to demonstrate a business need for implementing it. Notably, with regard to individuals who were not exposed to the Ebola virus, the CDC states, “During the time you are monitoring your health, you can continue your normal activities, including work.” Further, given the CDC’s current thinking on Ebola exposure and infection, the argument that the ADA’s “direct threat” exception would permit mandatory medical testing of anyone traveling to a country of outbreak at this time, would be problematic, particularly if there is no evidence of exposure to Ebola. With regard to employees who were exposed to the virus, however, the CDC is more equivocal, suggesting that the employee have his/her doctor evaluate the situation in consultation with public health authorities. Given the CDC’s approach with regard to this category of travelers, an automatic leave requirement for employees exposed to Ebola may be sustainable – particularly if supported by local public health authorities.
May an employer require a medical clearance before an employee returns to work?
If an employee had symptoms or was exposed to Ebola, it is appropriate to require a medical clearance before permitting the person to return to work. If an employee was not exposed to Ebola, however, the CDC’s current pronouncement that such employee could continue to engage in normal activities will make such a requirement legally questionable.
May an employer require an employee to report on the results of self-monitoring or even to check the temperature of the employee each day during the recommended 21-day period?
Based on the fact that the CDC has recommended that individuals who traveled to the areas of outbreak should self-monitor, including by checking their own temperature, a requirement that the employee report on his/her compliance with the CDC’s recommendations or checking the employee’s temperature during the 21 day period would likely be viewed a permissible under the ADA. (Obviously, one needs to keep in mind that a temperature can be caused by conditions other than Ebola.)
The bottom line question of interest to employers is what can they do with regard to protecting the workplace from Ebola. There is no one size fits all answer. The right choice will depend on the type of workplace, the job the employee performs, and the employer’s tolerance for legal risks (to name a few of the considerations an employer would take into account). However, the following represent several options based on the CDC’s and other guidances:
Employee Education. There is widespread misunderstanding of how Ebola is transmitted, and where the outbreaks are occurring. Employees should be educated as to the facts, which should calm some of the fears in the workplace.
21-Day Leave. Regarding Ebola policies/procedures, one size does not fit everyone. A blanket policy of requiring all employees traveling to the areas of outbreak to remain out of work for 21 days following their return to the U.S., either with or without pay, and to obtain a medical examination releasing them to return to work at the end of the period would likely be deemed unnecessary under the CDC guidelines, at least with regard to those who were not exposed to the Ebola virus. On the other hand, it may be appropriate for workplaces such as hospitals and nursing homes, where the nature of the work and risk of harm to the populations served requires a more stringent standard. Employers that choose this rule should be able to justify the business necessity of adopting it. In addition, placing the employee on paid leave will minimize the risk of liability that might be found under federal anti-discrimination laws. In order to further any risk involved in this approach, employers can also choose not to require a medical examination for employees who were not exposed to Ebola during their travels.
Combined Leave and Return to Work. A more nuanced approach is to require employees who have been exposed to the virus to remain out of work for the 21 days, either with or without pay, but to permit employees not known to have been exposed to the virus in their travels to an area of outbreak, to return to work, subject to self-monitoring. Obviously this contemplates that the employee would know whether he/she was exposed and would provide an honest and educated answer. Depending upon the circumstances, employers may further choose to require such employees to report on self-monitoring, or check the temperatures of the employees during the 21-day period.
Another approach, in keeping with the CDC guidelines, is to require employees who have been exposed to Ebola to be assessed by their doctor, in consultation with public health authorities, in order to determine their risk level and what actions are appropriate. Whether the employee would be permitted to return to work, with self-monitoring, would depend on the doctor’s assessment. Employees not exposed to Ebola would be permitted to return to work with self-monitoring, as set forth in the previous option.
Telecommuting. If an employee is required to remain home for the 21-day period, telecommuting may or may not be an option.
Family Members. In addition, employers can require employee to report on whether household members have traveled to such areas, and whether they exhibit any signs of infection. If there is, then the employee can be required to self-monitor or to remain out of work for the 21-day incubation period.
Confidentiality. Any information received from employees with regard to Ebola exposure, symptoms, and medical examinations should be treated as a confidential medical record (meaning that it is kept in a secure file separate from the employee’s personnel file). It is not appropriate for the employer to discuss the individual employee’s exposure, symptoms or results of medical examinations with the co-workers, or even managers who do not have a business need to know. Employers may and should communicate that they have implemented Ebola policies and that the policies are being followed with regard to all employees to ensure a safe workplace.
Consult with Your Attorney. In developing a written policy, we suggest that you consult with counsel to ensure that, before the proposed policy is implemented, legal risks have been identified and assessed, and that the policy is appropriate for your specific workplace. In addition, what the policy actually contains may need to be modified as the Ebola situation further develops.