• Ebola in the Workplace - The Law
  • December 8, 2014 | Author: Fiona W. Ong
  • Law Firm: Shawe & Rosenthal LLP - Baltimore Office
  • This is the second in a three-part series on Ebola in the workplace. In the last blog posting, I discussed the actual facts about Ebola as set out by the Centers for Disease Control - exposure, symptoms, and self-monitoring. In this posting, I will discuss the legal framework with regard to developing and implementing Ebola policies. Primarily, there are three laws that come into play: the Occupational Safety and Health Act, administered by the Occupational Safety and Health Administration (OSHA), and the Americans with Disabilities Act (ADA) and Title VII, both of which fall under the authority of the Equal Employment Opportunity Commission (EEOC).

    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.”

    In the context of Ebola, the types of medical inquiries and examinations can involve the following:

    • Asking employees where they traveled and whether they were exposed to Ebola
    • Requiring employees who have symptoms to go on leave and obtain medical treatment
    • Requiring employees to obtain medical clearance before returning to work
    • Checking the temperature of employees during the 21-day incubation period, or requiring them to report on self-monitoring (including temperature checks)

    In determining whether and what medical inquiries and examinations are justified by a direct threat, the EEOC states that employers should look to the latest assessment by CDC or public health authorities. The EEOC acknowledges that the public health recommendations issued by these agencies may change, and may even differ from each other. Thus, according to the EEOC, “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.” Thus, the information from the CDC, as discussed in the last blog post, will define the parameters of the employer’s requests for medical information and examinations.

    On the question of what inquiries an employer may make of employees returning from travel, the EEOC notes 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, given the CDC’s pronouncements on the outbreaks in certain countries, 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.

    An employee who has developed symptoms of Ebola - either before or after returning to work - clearly poses a direct threat and can be directed to not come to the workplace and to obtain immediate medical treatment. Although this is self-obvious, the CDC also states that employees showing signs of Ebola should seek medical care. Similarly, the EEOC, in its Pandemic Guidance, states that employees with symptoms of infection may be sent home, in order to remove any direct threat from the workplace.

    A related issue is whether an employer can keep an employee who is not showing symptoms of Ebola 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. Local authorities, however, may have a different perception of these concerns, so it is worth checking to see what their recommendations are with regard to non-exposed travel. 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.

    Whether an employer can require medical clearance from employees before returning to work is similarly complicated. If an employee has symptoms of Ebola, it is entirely appropriate to require medical clearance before permitting him/her to return to work. In its Pandemic Guidance, the EEOC acknowledges that this action would be justified under the ADA standards. If an employee was exposed to Ebola but exhibits no symptoms, the CDC’s recommendation that the employee should consult with his/her doctor would presumably support a requirement that the employee be cleared by that doctor before being allowed 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 while self-monitoring will make such a requirement legally questionable. While a direct threat exception clearly applies to employees with symptoms or those who have been exposed to the virus, this exception is less persuasive as to non-exposed employees given the CDC’s current position on such travelers.

    On the question of whether an employer may require an employee to report on the results of self-monitoring or even to check the temperature of the employee, these actions are medical inquiries/tests under the ADA. In its Pandemic Guidance, the EEOC states that “measuring an employee’s body temperature is a medical examination,” and thus its permissibility is governed by the risk assessment of the CDC and local and state public health authorities. Based on the fact that the CDC is now requiring those who travel from the Ebola zone to check in daily with health officials to report their temperature and any symptoms, it seems likely that a requirement that the employee report the same information to the employer, or even allowing the employer to participate in the monitoring by checking the employee’s temperature, would be permitted under the ADA. As the EEOC notes, however, employers must keep in mind that a temperature can be caused by conditions other than the one of concern.

    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 avoid the potential risk, 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 relying on unwarranted assumptions.

    Given this legal background, we’ll next turn to practical suggestions in addressing Ebola in the workplace.