By: James B. Sherman, Esq. & Phoebe A. Taurick, Esq.
With the growing concern over the spread of Ebola now that it has made its way to the United States, employers are stuck between a rock and a hard place when trying to figure out how to address the issue. There is a lot of confusion about Ebola, including how it is spread. But one thing is clear: a lot of people who get it die. On the one hand, employers have obligations to keep their employees, as well as their clients and customers, safe from known, preventable risks, but on the other hand, employers who overreact could face discrimination charges and other legal exposure.
Obviously, employers in the healthcare and airline industries have been forced to face these issues earliest due to the potential for dealing directly with patients or travelers who have or have been exposed to the Ebola virus. However, another way for Ebola to become a significant employment issue is in the all too common scenario where employees travel to locations where the outbreak is most prominent. Many of our clients have asked about employees who return from visiting family members in the principal countries impacted by Ebola. These employers want to know, what, if anything, they can do to protect their employees, as well as their customers and clients from the risk of Ebola.
Some employers will be tempted to require any employees returning from such countries to remain home for the 21-day incubation period. However, this could potentially raise issues of national origin discrimination, or of regarding the employee as disabled. Alternatively, employers may want to take the temperature of such employees, as a fever is typically the first symptom. But this would constitute a medical examination under the ADA and therefore would only be acceptable if doing so was "job-related and consistent with business necessity."
However, employers that don't do anything could arguably face claims of negligence if an employee does bring Ebola back to the workplace, and infects clients or customers, or of failure in its general duty to keep the workplace free from hazards, if another employee becomes infected. While these issues apply to all employers, they go beyond just healthcare workers and may have particular significance in industries such as the hotel, restaurant, and other food service industries where the risk of spreading may be greatest.
Finally, if any employees refuse to work because of a fear of being infected, this refusal might be protected by OSHA and/or the NLRA, and therefore, employers should think twice before disciplining employees who may be unwilling to work for this reason.
Despite the uncertainties with how to deal with Ebola, we recommend that employers think about this now, and develop contingency plans to address, among other things: how to deal with employees who have traveled to or plan to travel to an at-risk country, or may have otherwise been exposed to Ebola; what to do with employees who refuse to work; and how to deal with employees who request special protections.