Dealing with Ebola -- and Ebola-Related Fears -- in the Workplace

Now that the Ebola virus has landed on U.S. soil, employers here are grappling with how to address various workplace issues, ranging from addressing irrational fears among employees to dealing with employees who may have had actual or potential exposure to the virus. First, employers should learn the facts about the Ebola virus to help stop the spread of misinformation and hysteria. Second, they should consider practices that balance employee and workplace safety with ensuring compliance with federal, state, and local laws and regulations.

The Ebola Virus
Understanding the Ebola virus and educating managers and employees about it can help calm irrational fears at the workplace. According to the Centers for Disease Control and Prevention (the "CDC"), symptoms of the Ebola virus include fever of 100.4° F or higher, headache, vomiting, diarrhea, joint and muscle aches, weakness, stomach pain, and lack of appetite. Symptoms can appear anywhere from two to 21 days following exposure to the Ebola virus, although eight to 10 days is most common. Importantly, the CDC advises that persons without these symptoms are not infectious to others, but the CDC recommends that persons who may have come into contact with the virus should be monitored closely for at least 21 days, including taking the person's temperature each morning and evening.

The CDC also states that Ebola spreads through direct contact with an infected person through blood or bodily fluids, including vomit, feces, urine, sweat, and saliva. Thus, certain employees, such as those who work in the health care, sanitation, emergency response, and travel industries, tend to be at greater risk for exposure. Regardless, all employers should consider certain employment laws and regulations when dealing with the risk of Ebola – or any other highly infectious disease – in the workplace.

Protecting Employees Working in High-Risk Industries
Employers should ensure that their workers are properly trained about the risks of exposure to the virus and have the tools to prevent and minimize potential exposure. Federal and state occupational safety and health regulations require employers to implement exposure control plans and to provide personal protective equipment, as well as training on such equipment, to protect workers where there is a risk of exposure to bloodborne pathogens and other health risks.¹

Employers with workers in professions or industries where there may be direct exposure to the Ebola virus should ensure that they are not only compliant with applicable occupational safety and health regulations, but also should follow recommendations from the CDC to prevent the disease from spreading.

Handling Employees Who May Have Come into Contact With Sick Individuals
Under the ADA – which applies to all private employers with 15 or more employees and state and local governments, regardless of the number of employees – employers are prohibited from discriminating against qualified individuals with disabilities.³ This generally includes individuals who are "regarded as" having a disability.⁴ Title VII of the Civil Rights Act of 1964 also prohibits employers from discriminating on the basis of race or national origin, protected categories that may be implicated in certain situations.⁵ Adverse employment actions made on the basis of disability or race could put employers at risk of exposure to employment discrimination claims. Importantly, some states may have their own disability discrimination laws that are more protective of employees than the ADA or Title VII. For example, California's Fair Employment and Housing Act provides even greater levels of protection from discrimination.⁶

Generally, the law does not prohibit employers from asking employees whether they have recently traveled to the West African countries most affected by Ebola. In the event that an employee has traveled to such countries or was otherwise in contact with an infected individual, employers should weigh any action against whether it could violate any laws or regulations. For example, it generally is not advisable to require an employee to stay away from work unless the employee is exhibiting signs and symptoms of Ebola. Employers should evaluate what may be considered reasonable under the individualized circumstances of each situation and should contact their legal counsel to understand the legal implications.

Employees Who Refuse to Report to Work or Travel
OSHA regulations protect workers from retaliation if they refuse to report to work if their health and safety may be in danger.⁷ If an employee refuses to report to work for fear of contracting the virus, employers should evaluate the reasonableness of such fears. For example, it may be reasonable for an employee to refuse to travel to West Africa, a region that has seen as many as 4,500 deaths since the outbreak began, but it may not be reasonable for an employee to refuse to travel to Los Angeles, Calif., where there has been no known case of Ebola. A business trip to Dallas, an area that has only seen transmission of the virus to health care workers who directly treated a single Ebola patient, is less clear. Employers must evaluate what may be considered reasonable for each individual circumstance.

In dealing with these emerging issues, employers should consider implementing policies or practices that appropriately balance employee safety with compliance and should contact their legal counsel for advice on specific circumstances.

Ben J. Kim is a partner in the Los Angeles office of Allen Matkins and a member of its Labor & Employment and Class Actions groups. He represents employers in a range of employment and labor matters, including those involving alleged wage and hour violations, workplace safety and health violations, employment discrimination, workplace harassment, retaliation, wrongful termination, and disability accommodation. Rachel Sanders is an associate in the Los Angeles office of Allen Matkins.

References
1. See, e.g., 29 CFR § 1910.132; 29 CFR § 1910.134; see also, Cal. Code Regs. tit. 8, § 5193.
2. http://www.cdc.gov/niosh/topics/ebola/ (last visited Oct. 23, 2014)
3. 42 U.S.C. § 12112
4. 42 U.S.C. § 12101(a)(1)
5. 42 U.S.C. § 2000e-2
6. California Government Code § 12900, et. seq.
7. See 29 CFR § 24.103; see also, 29 U.S.C. § 660.

Posted by Ben J. Kim, Rachel Sanders on Oct 23, 2014