December 01, 2014
As a result of the recent Ebola outbreak in West Africa, many U.S. employers have become concerned about how to address potential exposure to Ebola in the workplace. In this article, we outline some common situations that might arise and offer guidance and advice based on the operative legal framework. We first describe the background of the recent Ebola outbreak and explain health authorities' pronouncements about how the disease is spread. Next, we examine the specific legal issues employers may face in industries with a higher risk of exposure, when employees travel to areas with widespread Ebola infections, or when employees take adverse action against coworkers based on national origin- or race-based stereotypes. We conclude by offering some practical advice.
The recent Ebola outbreak originated in Guinea and spread to Sierra Leone and Liberia. This outbreak garnered significant media attention in the United States when information about a patient with Ebola traveling to the U.S. first surfaced. The Centers for Disease Control and Prevention (CDC) confirmed the Ebola diagnosis on Sept. 30, 2014.1 About two weeks later, two health care workers who cared for that patient contracted the disease themselves. Id. On Oct. 23, 2014, the CDC confirmed the diagnosis of a health care worker who contracted Ebola in Guinea, sparking additional media coverage. Id. In light of these developments, employers have become increasingly concerned about how they might react if their own employees become exposed to the virus.
Ebola Virus Disease, also known as Ebola Hemorrhagic Fever, spreads through direct contact with blood, other body fluids, and skin of people with Ebola symptoms or contact with bodies of those who died of Ebola, according to the CDC.2 Symptoms—including fever, headache, weakness, diarrhea, and unexplained hemorrhage—appear anywhere from two to 21 days after exposure.3
Ebola can spread, once a person is symptomatic, through coughs, sneezes, and germs left on surfaces, but the CDC has reported no conclusive scientific evidence establishing that Ebola spreads between humans through particles in the air the way "airborne" diseases like tuberculosis and chicken pox do.4 However, studies on transmission through small airborne particles do not eliminate that possibility. Id. The CDC also stated that the Ebola virus can survive for several hours on dry surfaces, and for up to several days at room temperature in body fluids.5
Higher Risk Industries
The CDC stated that the risk of contracting Ebola is very low.6 Despite the CDC's current assessment and the small number of people in the United States who have actually contracted the disease, the CDC and other governmental authorities have taken action to study the issue, to inform the public and to seek to contain the spread of the virus. Employers should heed these developments, particularly in light of the 50 percent death rate in the recent 2014 outbreak.7
Employers in industries with an elevated risk of exposure should be most vigilant and prepare to address any sudden case of Ebola that may arise. Employers whose workers may be at higher risk include those in the health care, funeral, and airline industries.8 A threshold concern for such employers is their obligations under the Occupational Safety and Health Act (OSHA), which requires that employers maintain a workplace "free from recognized hazards" that are likely to kill or cause "serious physical harm." See 29 U.S.C. §654.
To the extent workers in these industries may come into contact with body fluids of people with Ebola, employers should seek to comply with OSHA's blood borne pathogens standard, which, among other things, directs employers to create and maintain an exposure control plan, to provide protective equipment to potentially exposed employees when warranted at no cost to them, and to store and dispose of "potentially infectious materials" according to regulatory specifications. See 29 C.F.R. §1910.1030.
Employers who conduct business in countries with widespread Ebola outbreaks also have particularly acute concerns regarding the risk of spreading the virus in the workplace. If an employer requires employees to travel to affected areas for business reasons, those employers should be prepared to respond to opposition from affected employees. Specifically, employers should consider whether employees who refuse to travel to those countries would argue that their opposition constitutes protected activity under OSHA or the National Labor Relations Act (NLRA).
Under OSHA, employees typically may not refuse to work because of potentially unsafe working conditions. See 29 C.F.R. §1977.12(b)(1). Employees may refuse a task if presented with a choice between serious injury or death and refusing to perform assigned tasks, but only if the employer refuses to correct the hazard, regular enforcement channels would react too slowly, and the employee has "no reasonable alternative." See 29 C.F.R. §1977.12(b)(2). An employer may not discriminate against an employee for refusing to work in that situation if the employee does so reasonably and in good faith. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 19 (1980).
If an employee, in conjunction with other employees, refuses to work because of a perceived risk of exposure to Ebola, that employee may argue that the NLRA protects that refusal. For example, if an employee suffers adverse action based on a Facebook post9 about working conditions that the employee believes to be unsafe, that employee may claim that the employer has violated the right to engage in "concerted activities…for mutual aid and protection." See 29 U.S.C. §157.
Employers also should be prepared to deal with employees who choose to travel to affected countries for personal reasons, such as vacations or family visits. An employer may not learn where employees have traveled during personal time off, and even if an employer learns that an employee traveled to a country experiencing an outbreak of Ebola, the Americans with Disabilities Act (ADA) restricts mandatory medical examinations and the types of questions an employer may ask about employee travel.
The ADA prohibits disability-related inquiries and medical examinations unless they are job-related and consistent with business necessity. See 42 U.S.C. §12112 (d)(4)(A). Although the Equal Employment Opportunity Commission (EEOC) has made no pronouncements on requiring employees to answer questions about potential exposure to the Ebola virus or to undergo medical examinations, the EEOC's guidance released in response to the 2009 H1N1 flu pandemic provides helpful guidelines.10 The guidance states that a disability-related inquiry or medical examination is "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence" that a medical condition will impair an employee's ability to perform essential job functions, or that a medical condition causes an employee to pose a direct threat. Id.
The EEOC also explained that employers may not ask questions that tend to reveal a disability, such as describing a general diagnosis that leads them to take sick leave, but the CDC indicates the employers may ask about whether an employee is experiencing specific symptoms of a disease if it poses a direct threat. Id. The EEOC further stated that measuring an employee's body temperature is inappropriate unless the flu pandemic becomes "more severe" or "widespread in the community" according to the CDC or "state or local public health officials." Id.
If an employer learns that an employee has contracted Ebola, the employer may take action to exclude that employee from the workplace. Assuming that an employee is "disabled" under the ADA,11 the ADA allows employers to require that an individual not "pose a direct threat to the health and safety of other individuals in the workplace." See 42 U.S.C. §12113(b).
Four factors determine if an employee presents a direct threat: duration of risk, nature and severity of harm, likelihood of harm and imminence. See 29 C.F.R. §1630.2(r). The determination must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence." Id. A good-faith belief that a significant risk exists is insufficient. See Bragdon v. Abbott, 524 U.S. 624 (1998) (holding that doctor did not provide objective evidence supporting refusal to treat AIDS patients in his office).
Employers also should be prepared to confront irrational stereotypes among co-workers who fear contracting Ebola, and who may make irrational assumptions based on improper, unscientific bases. For example, if an employee refuses to work with a co-worker from a country with a widespread Ebola outbreak even though that co-worker did not visit her home country recently, that refusal would be based on fear and stereotypes.
An employer facing that behavior can justifiably take adverse action against the employee who has refused to work based on such irrational fears or stereotypes. Conversely, if an employer fails to discipline an employee acting out of fear and stereotypes, the employer could face claims from the co-worker for discrimination. For example, in a case prior to the current outbreak, a court cited a supervisor's comment that he "hoped [a black employee] did not have the Ebola virus that they have over in Africa" as one of the comments that constitutes evidence of a hostile work environment of race discrimination. See Dalton v. Jefferson Smurfit Corp. (U.S.), 979 F.Supp. 1187, 1191 n. 4 (S.D. Ohio 1997).
Employers whose employees face a heightened risk of exposure should consider disseminating up-to-date information about Ebola to their employees, informing them of the signs and symptoms of Ebola, the methods of contracting the disease and reminding them to engage in infection prevention measures like washing hands and using hand sanitizer. Those employers also can adopt a voluntary reporting policy, asking their employees to report any symptoms to the employer, while assuring them that no adverse action will be taken.
By contrast, employers whose employees do not face a heightened risk of exposure to Ebola appear to have little to do immediately, at least presently. Right now, the CDC's admonition that the risk of exposure to Ebola is low appears to be the most relevant information to most employers. Unless and until the number of Ebola cases increases in any employer's places of operation or becomes more prevalent in the United States, most employers should remain calm and monitor CDC and government pronouncements regarding the spread of the disease and new scientific developments in understanding the illness.
1. Previous Updates, Centers for Disease Control and Prevention (Oct. 29, 2014), http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/previous-updates.html.
2. Review of Human-to-Human Transmission of Ebola Virus, Centers for Disease Control, http://www.cdc.gov/vhf/ebola/transmission/human-transmission.html (last updated Oct. 29, 2014) ("CDC Transmission Review").
3. Signs and Symptoms, Centers for Disease Control and Prevention, http://www.cdc.gov/vhf/ebola/symptoms/index.html (last updated Nov. 2,, 2014).
4. See CDC Transmission Review, supra note 2.
5. Questions and Answers, Centers for Disease Control and Prevention, http://www.cdc.gov/vhf/ebola/transmission/qas.html (last updated Nov. 20, 2014).
6. See Epidemiologic Risk Factors to Consider when Evaluating a Person for Exposure to Ebola Virus, Centers for Disease Control and Prevention, http://www.cdc.gov/vhf/ebola/exposure/risk-factors-when-evaluating-person-for-exposure.html (last updated Nov. 16, 2014).
7. See West Africa Ebola Outbreak, Centers for Disease Control and Prevention, http://www.cdc.gov/vhf/ebola/pdf/west-africa-outbreak-infographic.pdf (last visited Nov. 25, 2014).
8. See Workplace Safety and Health Topics, Centers for Disease Control and Prevention, http://www.cdc.gov/niosh/topics/ebola/ (last updated Nov. 21, 2014).
9. The NLRB and Social Media, National Labor Relations Board, http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media (last visited Nov. 24, 2014) (explaining that the NLRA protects some social media activity).
10. Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, Equal Employment Opportunity Commission, http://www.eeoc.gov/facts/pandemic_flu.html (last updated Oct. 9, 2009).
11. The ADA protects "qualified individual[s]" on the "basis of disability." See 42 U.S.C. §12112. Under the ADA, individuals with disabilities are those who have a "physical or mental impairment that substantially limits one or more major life activities," including anyone "regarded as having such impairment." See 42 U.S.C. §12102. A major life activity can include any major bodily function including bladder and bowel functions, as well as walking, standing, and concentrating. See 42 U.S.C. §12102(2).
Reprinted with permission from the December 1, 2014 edition of the New York Law Journal © 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.