Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...Read More by Author
Prepare, Don’t Panic – Seven Tips for Ebola Preparedness in the Workplace
While there have only been four confirmed cases of Ebola in the United States, public concern about the potential spread of the virus has been growing rapidly. Most experts agree that the U.S. health system is well-equipped to contain Ebola, which spreads only through direct contact with the bodily fluids of a person who is both infected and symptomatic. However, until the virus is contained in the three West African countries where it currently resides (Liberia, Sierra Leone, and Guinea), the U.S. will probably continue to see “imported” cases of Ebola from these countries.
Given the recent public concern about Ebola, and with the 2014-2015 flu season fast approaching, now is a good time for employers to take proactive steps to prepare for any communicable diseases that may impact the workplace.Consider the following tips:
1. Emphasize and follow existing policies
One of the best ways employers can control the spread of disease is by making sure sick workers stay home. Employers should ensure that all employee leave policies are up-to-date and that all employees are aware of them. Employers should require employees to stay home when ill, and make sure that supervisors and managers set a good example by doing the same. Disabled employees (as defined in the Americans with Disabilities Act) who have exhausted paid sick time or their leave entitlement under the FMLA may also be entitled to additional unpaid leaves of absence as a reasonable accommodation.
2. Develop a communicable illness policy
A clearly drafted, well-defined communicable disease policy is an essential tool to ensure that expectations are clear and that employee health issues are handled consistently. Communicable disease policies should be flexible enough to cover a variety of communicable illnesses that may arise.
3. Use basic precautions
Instruct employees on proper infection control practices, including regular hand-washing and proper etiquette for sneezing and coughing (sneeze and cough into a tissue, or the fold of your arm, as opposed to your hands).These methods can help prevent the spread of a variety of communicable illnesses.Posters and signs can be placed in bathrooms and common areas to remind employees of these techniques. Employees should also be encouraged to get vaccinated for influenza, and other diseases if appropriate.
4. Identify employees who are at risk for Ebola
As current events have shown, people who travel to the impacted areas in West Africa and have contact with infected individuals may begin to show Ebola symptoms when they return to the United States within the virus’s 21-day incubation period. There are a few basic steps that employers can take to assess and identify whether any of their employees are at risk for contracting Ebola. Employers can require employees to report any travel to the areas with active Ebola outbreaks. Broader inquiries, such as asking about travel to any country in Africa, could be alleged to violate anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964. Employers who choose to make travel-related inquiries should do so for all employees, regardless of race, national origin, or any other legally protected category.
If an employee has traveled to an area impacted by Ebola, the employer can ask further questions to determine the employee’s exposure risk, in accordance with current guidance from the CDC and other public health authorities. If any risk factors are present, the employer should inform the appropriate state or local public health authority, which may have a responsibility for monitoring the employee for symptoms during Ebola’s 21-day incubation period.
5. Require leaves of absence or medical examinations only when appropriate
For employees who have traveled to the impacted areas but do not show any symptoms, the decision whether or not to require them to stay home for the duration of the 21-day incubation period can be tricky. Under the Americans with Disabilities Act (“ADA”), employers cannot exclude employees from the workplace or require medical examinations based on an actual or perceived disability unless there is a reasonable basis to believe that the employee poses a direct threat to the public or other employees. Any decision to require an asymptomatic employee to submit to medical testing or take an unpaid leave of absence should be made on a case-by-case basis, after consultation with an attorney.
To minimize exposure under the ADA, employers can also choose to offer paid time off for asymptomatic employees during the 21-day incubation period after a potential exposure. This leave arguably should not be counted towards the employee’s existing vacation or sick leave entitlement.
6. Combat misconceptions and prevent harassment
Employers should promptly address any employee fears and misconceptions about Ebola that may lead to workplace disruption and potential liability. Policies and training on Ebola should address basic facts about how the disease spreads (and how it does not spread), describe the symptoms of Ebola (including how they are similar to, and different from, symptoms of other illnesses), and refer employees to further resources such as fact sheets and updates produced by the CDC.
Employers with employees from the impacted areas or other African countries must be vigilant regarding any harassment or discrimination directed at these employees, which could violate federal and state anti-discrimination laws if not properly addressed. For example, a pattern of avoiding employees of a certain national origin based on unfounded fears could constitute an unlawful hostile work environment. Employers should ensure that their anti-discrimination and harassment policies and complaint procedures are up-to-date and that employees and supervisors have recently received training on their rights and obligations under these policies.
7. Don’t panic!
With a proactive, fact-based and legally sound approach, employers can help minimize the risk of infectious disease (and potential spread of such disease) and potential liability as well.