The right response depends on several factors and there is no one-size-fits-all solution
A. Kevin Troutman and Matthew Korn, of Fisher & Phillips, recently penned an article in Forbes offering a few tips for employers to consider on how to respond to several questions relating to the Ebola virus:
- What should employers do when they learn that an employee is planning a trip to West Africa to visit family?
- What if other employees refuse to come to work because they fear that the returning employee may have been exposed to Ebola Virus Disease?
- How can employers prepare in advance for such situations?
“Based on extensive news media coverage of the spread of Ebola in West Africa, and the recent transmission of the virus in the United States, many employers are scrambling to answer these questions. The right response depends on several factors and there is no one-size-fits-all solution,” wrote Troutman and Korn. They suggested that employers can “get out in front of these issues and reduce potential liability” by taking some proactive steps:
- Communicating. To help reassure employees and customers, companies should prepare managers to: Give employees and customers pertinent information from the CDC and other health organizations; explain steps the company is taking to protect its employees, customers and the general public; and reaffirm that the company takes health and safety very seriously and will take appropriate, lawful action to protect them. Companies should also consider appointing a manager to develop a protocol for handling employee complaints and concerns.
- Asking Employees About Travel Plans. If an employee travels to West Africa, or is otherwise potentially exposed to Ebola, employers can — and should — inquire about the employee’s travel plans, whether he/she had contact with anyone who was exposed to Ebola, and whether the employee is experiencing any flu-like symptoms. Employers should be careful, however, to ensure that no inquiry is likely to reveal an employee’s disability, which can lead to liability under the Americans with Disabilities Act (ADA).
Quarantining an exposed employee is also “an increasingly common consideration among employers, particularly where telecommuting is not an option.” Troutman and Korn say that realistically, an employer cannot “quarantine” an employee, but could place an employee on leave of absence during the 21-day incubation period, to determine whether the employee is infected. However, this option also presents potential liability under the ADA.
“The ADA not only prohibits employers from discriminating against employees who are disabled (being infected with Ebola would likely be considered a disability), it also prohibits discrimination against an employee ‘regarded’ as disabled. So for most employers, this is currently not the best option.”
Meanwhile, if other employees refuse to work because they are afraid of becoming infected with Ebola, this may be a protected work refusal under OSHA’s whistleblower protections or similar state laws. Additionally, if several employees refuse to work and essentially go on strike, their refusal would likely be protected under the National Labor Relations Act. “Therefore, employers must consider whether refusal to work is protected before taking any adverse action, such as termination.”
Troutman and Korn summarize that the Ebola outbreak is an evolving situation and employers need to carefully consider their response, in order to maintain workplace safety and to avoid potential liability under a variety of federal and state laws. Employers should consult their legal counsel to discuss specific situations.
