Pandemic Planning – Health in the Workplace:

December 2, 2014

With increased media coverage about the Ebola outbreak, employers may wonder what workplace action should be taken. This is also a good time to discuss keeping your workplace germ free as the flu season gets into full force. Keep in mind that the likelihood of Ebola affecting your workplace may be small, so consider this a good time to revisit pandemic protocols. Chances are you will have a much better chance of flu and cold germs around and the protocols are virtually the same. Employers are encouraged to consider the following controls to help protect the workplace:

Develop policies that encourage ill workers to stay at home without fear of reprisal.
Understand state and federal leave laws that apply for serious health conditions.
Develop practices to minimize face-to-face contact with a sick worker such as extended use of e-mail, websites and teleconferences. Where possible, encourage flexible work arrangements such as telecommuting or flexible hours.
Provide a work environment that promotes personal hygiene: provide tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels for workers to clean their work surfaces.
Note that employers in high-risk industries (e.g. health care, the airline industry) are encouraged to consult the CDC’s specific guidance about infection control and prevention.

As the likelihood of Ebola affecting other US workplaces is low, employers should be aware of safety concerns, while ensuring their actions don’t contribute to panic and don’t cause legal risk. Currently, the only affected countries in Africa are Guinea, Liberia, and Sierra Leone. It is recommended to defer all non-essential business travel to these countries. There is also a small cluster of cases in Mali, but there is no current recommendation to defer travel there at this time.

People traveling to affected areas who avoid high risk exposure (caring for Ebola patients, burying their bodies, or hunting/eating bats or bushmeat) are at low risk for infection. The virus does not travel through the air or via insect bites. The current outbreak is spreading person to person, via bodily fluids. People with Ebola can spread the virus to others only after they develop symptoms.

What should an employer do if employees have African travel plans?
Keep in mind there are only three affected countries, and the risk of transmission is low unless an employee has engaged in high risk activities.
Questions about diseases or exposure are disability-related. The ADA permits an employer to request medical information when there is a reasonable belief that a medical condition will pose a “direct threat.” A potential exposure to Ebola could constitute a direct threat, though employers must be careful to avoid unlawful stereotypes or assumptions and should limit inquiries to those who have traveled to affected countries. A company may not require an asymptomatic employee to get a medical exam.
Other employees may raise concerns about an employee who traveled. Employers should recognize the right to raise perceived safety concerns while ensuring employees who traveled (or who may have been exposed) aren’t discriminated against. A well intentioned employer could run afoul of both ADA and Title VII. Overstepping could give way to a “perceived as disabled” claim under the ADA, or even a race discrimination claim if the employer’s actions are perceived to be targeted only to African staff in absence of a direct threat.
Public Health authorities are screening travelers from the impacted West African nations, determining risk levels and mandating certain individuals be quarantined and monitored. Because public health authorities are making these decisions, employers will be relieved from determining the safety threat, for asking those quarantined to stay home from work. In the unlikely event an employee was diagnosed with Ebola, we recommend seeking legal counsel to determine how to reduce the risk of contagion without violating applicable law.
Remember that most of the time, having adequate hand washing, hand sanitizer and sick day policies in place will go a long way in keeping your workplace healthy and safe.