• Ebola: Emerging Concerns for Healthcare Facilities and Employers
  • October 9, 2014 | Author: Michael O. Eckard
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Atlanta Office
  • Recent months have been filled with news reports about the Ebola virus outbreak in West Africa. On August 8, 2014, the World Health Organization (WHO) stated that the spread of the Ebola virus in West Africa had become an “international health emergency,” and the Centers for Disease Control and Prevention (CDC) declared the outbreak the “first Ebola epidemic the world has ever known.” Over 3,300 people have perished from the virus so far, and the virus continues to spread in West Africa at an alarming rate. The BBC reported earlier this week that five people are now being infected every hour in Sierra Leone.

    News hit closer to home in August when it was reported that two American citizens were flown from Africa to Atlanta, Georgia for treatment of the Ebola virus at Emory University Hospital. A few weeks later, a third Ebola patient was sent to Emory for treatment. Just this week, the CDC confirmed the first case of Ebola to have been diagnosed in the United States. The patient began experiencing symptoms approximately five days after arriving in Dallas, Texas from West Africa, and is now being treated at Texas Health Presbyterian Hospital in Dallas. Since then, the CDC and other agencies have been investigating other people who may have come into contact with the Dallas patient to prevent further spread of the virus in the United States.

    With the news of incidents of Ebola in the United States, employers—particularly in the healthcare industry—have raised questions on how to safeguard employees and prepare for the potential impact of an Ebola virus outbreak in the United States. Fortunately, despite the problems with the virus abroad, the CDC has stated that “Ebola poses no significant risk to the United States.” Moreover, while there are issues for U.S. employers to consider, overreacting may prove to be dangerous as well. Employers should educate themselves about the Ebola virus, including its methods of transmission and the signs and symptoms of infection. Employers should also be prepared to address employee questions and concerns regarding workplace safety. But employers should engage employees cautiously, as companies risk liability under the Americans with Disabilities Act (ADA) if they go too far by directing inappropriate health-related inquiries to employees or taking action against employees they suspect to have come into contact with Ebola.

    About Ebola

    Ebola virus disease, formerly known as Ebola hemorrhagic fever, is a severe and often fatal disease caused by an Ebola virus infection. According to the CDC, there are several symptoms associated with the disease, including fever (greater than 101.5 degrees), severe headaches, muscle pain, vomiting, diarrhea, stomach pain, and unexplained bleeding or bruising. On average, symptoms appear between 8 and 10 days following exposure to the virus, though symptoms could appear anywhere from 2 to 21 days after exposure.

    The CDC reports that people who become infected with Ebola are not contagious until they are symptomatic. The virus is not transmitted through food, water, or air. Rather, the virus is typically transmitted by direct contact with blood or bodily fluids of an infected person, or with contaminated objects such as needles and syringes. Therefore, healthcare workers are most at risk in the United States, in addition to those who travel to the high-risk parts of West Africa. The CDC notes that during Ebola virus outbreaks, “the disease can spread quickly within healthcare settings, such as clinics or hospitals.”

    There is currently no vaccine for Ebola, though clinical trials for two experimental vaccines have begun in the United States and the United Kingdom.

    Addressing Ebola Concerns at Work

    The possibility that the Ebola virus will spread in the United States raises several concerns and issues for employers. As an initial matter, employers should note that the risk of transmitting Ebola is low at the time of this writing, and employers should be cautious not to overreact. Nevertheless, prudent employers should take the opportunity to review their policies, prepare to address employee concerns, and understand when an employer may lawfully inquire into the medical conditions of its employees.

    Employers should first understand that the ADA impacts how a company engages its employees about the Ebola virus in two major ways.

    • First, the ADA regulates when an employer may make medical inquiries or require medical examinations of applicants and employees.
    • Second, the ADA prohibits employers from excluding employees from the workplace for health or safety reasons unless they pose a “direct threat.”

    Therefore, employers should not ask employees about medical symptoms or conditions, or require medical exams of employees, unless such inquiries are job-related and consistent with business necessity, or the employer has some reasonable basis to believe the employee poses a direct threat to others. For example, employers should not require an employee to undergo a medical examination simply because the employee recently traveled to West Africa. However, employers may require employees to report to the company any diagnosis of a contagious illness without requiring the employee to specifically identify the diagnosis or illness. To determine if and when certain medical inquiries may become appropriate, employers should monitor any pertinent guidance issued from the U.S. Equal Employment Opportunity Commission (EEOC) and the CDC and consult with their employment counsel.

    Pre-Pandemic Planning

    Though the CDC estimates that it is unlikely that the Ebola virus will become a pandemic (i.e., a global epidemic), there are certain pre-pandemic planning steps that concerned employers may lawfully take. Employers may wish to review the EEOC’s 2009 guidance on pandemic planning, which the agency issued during the H1N1 influenza pandemic. While there are significant differences between the 2009 H1N1 global pandemic and the present Ebola epidemic in West Africa, and there is little reason to anticipate any widespread transmission of Ebola in the United States, the EEOC guidance discusses some relevant steps that employers (especially in the healthcare industry) may wish to consider, such as planning for unexpected absences or other work contingencies. Employers should also be prepared to cooperate with health authorities as they work to identify and isolate persons who may have been exposed.

    Healthcare Workers

    With healthcare workers at the greatest risk of infection, employers in that industry should review the latest CDC guidance, such as the “Infection Prevention and Control Recommendations for Hospitalized Patients with Known or Suspected Ebola Hemorrhagic Fever in U.S. Hospitals”. Healthcare employers should educate employees on the signs and symptoms of Ebola, and clinical employees working in an emergency department should be educated on CDC screening guidelines. The CDC has developed a screening poster that healthcare facilities can post in their emergency departments. Healthcare employees should be reminded of proper procedures for the use of personal protective equipment (PPE) and the handling and disposal of contaminated medical waste. Hospitals and other healthcare facilities may also wish to consult the CDC’s preparedness checklist.

    Communication & Education in the Workplace

    Employers in other industries should be prepared to respond to employee questions and concerns regarding workplace safety, such as by educating employees on the means and low risks of transmission in the United States. Employers should also be prepared to cooperate with healthcare authorities in the event an employee is identified by the authorities to have been exposed to the Ebola virus. Finally, some employers may wish to educate their employees on the signs and symptoms of Ebola virus disease and to encourage employees who believe themselves to be symptomatic to stay home, seek appropriate medical treatment, and request medical or other leave as may be appropriate. However, given the low risk of transmission in the United States, employers outside of the healthcare industry may wish to temper and carefully consider their communications with employees so as to avoid violating the ADA or creating unnecessary panic and concern in the workplace.