What You Should Know About Ebola As An Employer
While the severity of the disease is extreme, fortunately the Ebola virus (EHV) has been relatively contained so far in this country. However, that’s not to say we can’t visit potential legal ramifications in your workplace if, heaven forbid, EHV spreads and becomes pandemic.
What happens if one of your employees shows symptoms and/or comes down with the virus? How do you treat that employee in terms of the usual assortment of alphabet soup of protections for not only the employee, but for other co-workers and even customers visiting your workplace who run the risk of contracting what is known to be a very contagious and deadly disease?
From the top, and beginning with the Americans with Disabilities Act, you will want to ensure that legally you are within your rights in banning your employee from coming to your workplace for the incubation period, which the Center For Disease Control (CDC) states can be up to 21 days. Does that create the risk that the employee can sue you under the ADA, which prohibits employers from discrimination against individuals with disabilities? On the flip side, if you allow the employee to come to the office do you then run the risk of lawsuits by other employees and customers with whom the employee comes into contact?
Under the ADA, you would need to determine if the employee poses a direct threat to other employees or customers, and whether you can reasonably accommodate that employee in order to eliminate the risk. In order to keep your symptomatic employee from your workplace you will need to be able to show that the employee’s presence “creates a significant risk of substantial harm to the health and safety of others that cannot be eliminated by reasonable accommodation.” Given the current assessment by medical authorities (the CDC and others) of the ease with which the virus is transmitted, and that contracting the disease results in death approximately 60% of the time, even if the employee eventually ends up not being infected by EHV, keeping that employee away from your other employees for the incubation period could certainly be shown to be reasonable. Finally, other than properly equipped medical facilities (and the hospital in Dallas has shown that even then, there are major risks of spreading the virus), we can pretty much assume that you will not in any way be able to make a reasonable accommodation to eliminate or minimize the risk of transmitting the virus to other employees.
Moving along, under the Family and Medical Leave Act, employers with more than 50 employees are required to provide up to 12 weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee is also eligible under the FMLA in the event of a “serious health condition” affecting its spouse, child or parent. There is no doubt that the Ebola virus is a serious health condition, and it would definitely warrant unpaid leave on the part of the employee if he or she or a covered family member contracts the disease.
In terms of consideration under the Occupational Safety and Health Act (OSHA), you have a legal obligation to provide a safe and healthful workplace. Since OSHA has not yet enacted a regulation which deals with EHV, it would address anything raised regarding the virus under its “General Duty Clause” (Section 5(a)(1)), which requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death. It’s safe to say that OSHA will be developing a plan with procedures to protect employees and would base these regulations on what the CDC and other similar sources would recommend. It’s also equally likely that these regulations, even if fast-tracked, will likely (and hopefully) be issued long after this immediate threat of the virus spreading is over.
Finally, because of the major health hazards associated with EHV, it is possible that an employee could refuse to work because that employee believes his/her health is in imminent danger at the workplace. An employee who makes this type of complaint is engaging in “protected activity” under Section 11(c) of the OSH Act and cannot be subject to adverse action by the employer until the employer can establish through “objective” evidence that there is no hazard or that the employer has developed a response plan that will reasonably protect the employee from exposure to the virus. Also known as “whistleblower protection”, this protects your employees from any retaliatory action that you might take in response to their refusal to work (at least in the context of exposure at the workplace.)
Sadly, the real threat is, of course, the potential toll the disease will take on human life. However, litigation risks by employees based on the looming Ebola crisis are not purely speculative – they are quite real.
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