Confronting Ebola Concerns in the Workplace; Legal Considerations

Executive Summary

Coverage:  All clients.

Effective Date: Immediate

Overview:   The spread of Ebola hemorrhagic fever (EHF) and the incidence of Ebola cases in the United States have raised issues for employers and employees on the appropriate workplace responses.  Workplace safety and health, including measures to protect employees, leave and health management, labor relations and workplace privacy concerns all are implicated. This article discusses the workplace law issues that may be presented.  Cascading developments soon will add to the questions business and other organizations have to answer. Employers are encouraged to continue to follow Centers for Disease Control and Prevention (“CDC”) guidance related to the disease as it is updated, along with information from other federal, state and local government agencies involved in the response. Information regarding the CDC’s response and recommendations can be found here.

Action Required: Contact your HR Business Partner for additional guidance as needed.

The Details

Background

EHF is caused by infection with an Ebola virus. EHF typically is associated with fever, muscle pain, headache and sore throat. Other symptoms, including nausea, vomiting, diarrhea and impaired organ function, may appear as the illness progresses. Symptoms of EHF arise within two days and 21 days after exposure, but eight days to ten days is the average.

The CDC categorizes the Ebola virus as a Category A select agent. This means that it poses a risk to national security because it can be easily disseminated or transmitted from person to person, can result in high mortality rates and has the potential for major public health impact, may cause public panic and social disruption, and can require special action for public health preparedness.

According to the Occupational Safety and Health Administration (“OSHA”), EHF is not generally spread through casual contact. The virus is transmitted primarily by direct contact with (1) body fluids (e.g., blood, vomit, urine, feces, sweat, semen, spit, and other fluids) of a person who is sick with or has died from Ebola, (2) objects contaminated with the virus (e.g., needles and medical equipment), and (3) infected animals (by contact with blood or fluids or infected meat).

The CDC has been monitoring the spread of the virus. As of October 16, 2014, the CDC has issued a Level 3 travel notice (avoid all non-essential travel) for three West African countries: Guinea, Liberia and Sierra Leone. Other countries, however, also have experienced cases, including the United States. Travel advisories are updated from time to time by the CDC and should be checked if overseas travel is planned. Travel advisories can be found at here.

In the U.S., cases of transmission of the virus have occurred in the health care setting. OSHA has stated, “Currently, Ebola virus and EHF do not pose a threat to most U.S. workers.” However, OSHA also has recognized that “Ebola viruses are capable of causing severe, life-threatening disease. Many people who get EHF die from it.”

Workplace Safety and Health Considerations

The first consideration for employers relates to risks associated with employee exposure to the Ebola virus and measures to protect employees from such exposure. Risk of exposure is higher in certain industries. Workers performing tasks involving close contact with symptomatic individuals with EHF or in environments contaminated or reasonably anticipated to be contaminated with infectious body fluids are at risk of exposure.

OSHA has identified workers in health care, laboratories, the airline industry, other travel service, mortuary and death care, border protection, and emergency responders as having the greatest risk of exposure. OSHA states that workers tasked with cleaning surfaces that may be contaminated with Ebola also must be protected.

From a compliance perspective, OSHA has identified the following standards as potentially applicable to the hazards of Ebola:

• Bloodborne pathogens (29 CFR 1910.1030)
• Personal Protective Equipment (29 CFR 1910.132)
• Respiratory Protection (29 CFR 1910.134)
• Hazard Communication (29 CFR 1910.1200)
• Toxic and Hazardous Substances (Subpart Z)

OSHA also has suggested that the General Duty Clause of the Occupational Safety and Health Act of 1970 (Section 5(a)(1)) may require employers to take additional actions depending upon the risks of employee exposure in the work environment. Specific information regarding these standards can be found here.

Finally, OSHA has published guidance to protect workers tasked with cleaning surfaces that may be contaminated with the Ebola virus.  The guidance can be found here.

This may be particularly applicable to health care employers, as well as janitorial service companies that provide cleaning crews to worksites that may have potential exposure. Key guidance includes:

• Isolating areas of suspected Ebola virus contamination until decontamination is completed.
• Treat any visible contamination or bulk spill matter with a suitable disinfectant before cleaning up.
• Use tools, such as tongs from a spill kit, as much as possible.
• Wear suitable personal protective equipment (PPE), including nitrile gloves, fluid-resistant or fluid-impermeable gowns, goggles or face shields, and facemasks.
• Avoid cleaning techniques such as pressurized air or water sprays that may result in the generation of bio-aerosols (aerosolized droplets containing infectious particles that can be inhaled).

For employees that must travel to an area affected by the outbreak, the CDC provides the following recommendations:

• Wash hands frequently or use an alcohol-based hand sanitizer.
• Avoid contact with blood and body fluids of any person, particularly someone who is sick.
• Do not handle items that may have come in contact with an infected person’s blood or body fluids.
• Do not touch the body of someone who has died from Ebola.
• Do not touch bats and nonhuman primates or their blood and fluids and do not touch or eat raw meat prepared from these animals.
• Avoid hospitals in West Africa where Ebola patients are being treated.
• Seek medical care immediately if you develop fever (temperature of 101.5°F/ 38.6°C) and any of the other following symptoms: headache, muscle pain, diarrhea, vomiting, stomach pain, or unexplained bruising or bleeding.

Employers in high-risk industries are encouraged to frequently consult the CDC’s specific guidance related to infection control and prevention. The CDC has developed fact sheets incorporating best practices for the high exposure industries which can be found here.

Employment and Labor Law Considerations

In addition to workplace safety and health issues, employers must consider significant employment and labor law issues that an Ebola event may raise. For example, coworkers’ concerns for their own safety about being near an employee who has traveled to or through Level 3 CDC alert countries or has been exposed to the virus should be anticipated and addressed. Similarly, return-to-work protocols for employees who travel to or through these countries are recommended. Employers may consider appropriate return-to-work protocols for individuals who travel to other countries who are not currently experiencing widespread Ebola outbreaks.

Most employment laws were not written with the outbreak of a deadly virus in mind. Perhaps because of this, in dealing with these issues, employers may find there is no effective “risk-free” approach. Rather, an employer may need to evaluate all options and adopt a “risk-management” mindset, choosing the business and legal strategy with which it is most comfortable.

Below are some basic employment law considerations to keep in mind:

• The Americans with Disabilities Act (“ADA”), among other things, prohibits employers from: (1) discriminating against individuals who have a disability, including those who are “regarded as” having a disability; and (2) making disability-related inquiries (DRI’s) of employees or requiring employees to undergo medical examinations unless it is “job-related and consistent with business necessity.” The ADA also prohibits employers from disclosing confidential medical information, including the identity of an employee with a communicable disease. The law does not require an employer to employ an individual who presents a “direct threat” of harm. A “direct threat” is defined as a significant risk of substantial harm to an employee or others that cannot be eliminated or reduced by a reasonable accommodation. (Determination that an individual poses a “direct threat” is based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job that relies on the most current medical knowledge or on the best available objective evidence.) Nor does the law require an employer to employ an individual who is unable to safely perform the essential functions of the position, either with or without a reasonable accommodation. There are also analogous state laws prohibiting discrimination based on a disability.
• The Genetic Information Nondiscrimination Act (“GINA”) prohibits an employer from discriminating against individuals based on genetic information and strictly limits circumstances where employers may request an employee’s genetic information (generally defined as information about the manifestation of disease or disorder in family members of the individual). GINA does allow disclosure of genetic information “to a public health agency, if information about the manifestation of a disease or disorder concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.”
• Section 7 of the National Labor Relations Act (“NLRA”) gives non-supervisory, non-managerial employees the right to engage in “protected concerted activity” for their own mutual aid or protection. Activity is “protected” if it is neither violent nor sufficiently opprobrious. Activity is “concerted” if it is taken by or on behalf of more than one employee and concerns the employees’ terms or conditions of employment, including safety and health. A refusal by a number of employees to work with an employee who traveled to the area or was exposed to the Ebola virus out of concern for their own safety may implicate Section 7.
• Federal, state and local leave laws such as the Family and Medical Leave Act, state family and medical leave laws, state and local paid sick leave laws may allow employees to take time off for diagnosis and treatment of either the employee’s medical condition or that of a family member.
• State medical privacy laws generally prohibit the disclosure of personal health information. Some require notification to an employee if there has been an unauthorized disclosure.
• Common law defamation or invasion of privacy claims may arise from identifying someone as having the virus when he or she does not.

Frequently Asked Questions

1. Can employers prohibit personal travel to West Africa?

Probably not.  In addition to certain state laws that may prohibit employers from regulating lawful off duty conduct, employer imposed travel bans could potentially be viewed as national origin discrimination.

2.  Can employers question employees about their travel plans to West Africa?

Yes.  If an employee travels to West Africa, or is otherwise potentially exposed to Ebola, employers should ask certain questions. They may for example ask about the employee’s travel plans, whether he or she had contact with anyone who was exposed to Ebola, and whether the employee is experiencing any flu-like symptoms. Employers should be careful, however, to ensure that no inquiry is likely to reveal an employee’s disability, which can lead to liability under the ADA.

3.  Can an employer require a medical examination for an employee who has traveled to an area with an Ebola outbreak before they return to work?

Probably not.  As discussed above, under the ADA, employers can require a medical evaluation only if it is justified by business necessity.  The Equal Employment Opportunity Commission is responsible for enforcing the ADA and has previously released Pandemic Guidance.  The EEOC’s guidance  states that an employer must take direction from the CDC or state/local public health authorities in determining whether an illness is a direct threat, and cannot make that assessment “on subjective perceptions . . . [or] irrational fears.” http://www.eeoc.gov/facts/pandemic_flu.html.

The ADA business necessity standard is probably not met in most workplaces at this time.  However, the standard might be met in the case of direct care healthcare workers depending on the nature of the travel and potential exposure during the travel.

The CDC has recommended that individuals who do not exhibit any symptoms and who have had no known exposure self-monitor for symptoms for a 21-day period after leaving an outbreak area. Employers may encourage employees to engage in this monitoring on their own.

4. Can employers impose a 21-day quarantine for employees returning from travel to West Africa so that they do not come into the workplace for that period?

Probably not.   As a practical matter, an employer cannot “quarantine” an employee. In addition, the CDC has advised those traveling that when they return they can continue normal activities, including going to work.   As indicated above, the CDC has recommended self monitoring and employers may encourage employees to engage in this monitoring on their own.

An employer could potentially place an employee on leave of absence during the 21-day incubation period to determine whether the employee is infected. However this option presents potential liability under the ADA, as well as liability under wage and hour laws, and discrimination laws due to a potential race and national origin discrimination claims.

With this in mind, we do not recommend quarantines / forced leaves based solely on travel to impacted regions.   However, if an employer is going to place an employee on leave, employers should ensure that no adverse employment action is taken (e.g. the employee should be paid).   While this alone does not guarantee an employee will not file a claim, it would reduce the risk of such a claim being filed.

5. My employees are nervous about traveling.  What can I do?

Education is key.   Management should educate employees about Ebola using official government sources of information available on the CDC website.   This should include information regarding the methods of transmission, the transmission risk (low) and the importance of good personal hygiene. The CDC has made available a number of communication resources which can be found at here.

It is critical that managers understand that they must not discriminate based on race or the mere fact that an employee has visited West Africa.

6.   May employees refuse to work with an employee who has traveled to West Africa?

Probably not.    Under the Occupational Safety and Health Act of 1970 employees may refuse to work only where there is an objectively “reasonable belief that there is imminent death or serious injury.”   That standard is not likely to be met at this time absent an individualized reasonable belief of exposure. 

As indicated above, the NLRA, like OSHA, gives employees the right to refuse to work in conditions they believe are unsafe. The employees should have a reasonable, good-faith belief that working would be unsafe, but the law protects them even if they are honestly mistaken about the risk. The two laws have slightly different standards.  Clients are urged to educate employees about Ebola as appropriate in order to proactively address potential fears (see question five above) and to contact their HR Business Partner for additional guidance as needed.

7.  I have many employees in California.   Are there California specific considerations?

In 2009, California adopted an occupational health regulation that specifically addresses infectious diseases like Ebola, which can spread by small liquid droplets that may come in contact with mucous membranes. This regulation, known as the Aerosol Transmissible Diseases Standard, helped inform the Ebola guidelines recently released by Cal OSHA which can be found at here.

The new guidance recommends that employers:

• Ensure that workers at risk of exposure to Ebola wear gloves, impermeable body coverings, face shields or other eye and face protection, and appropriate respiratory protection. All personal protective equipment (PPE) must be adequate to prevent the passage of bodily fluids to the employee’s clothing and skin. NIOSH-approved respirators must be used where infectious aerosols are likely to be present.
• Train employees in the use of all applicable protective equipment, including respirators. Employees must be clearly instructed on how to safely put on and take off equipment.
• Give employees opportunities to practice with the respirators and other equipment they will use.
• Provide dedicated, separate areas for the donning and removing of protective gear.
• Use either a buddy system or other means of assisting employees in donning and removing PPE. Employees who assist in removing contaminated equipment must also use PPE.
• Provide additional protective gear, such as double gloves and disposable shoe and leg coverings, in environments where copious amounts of blood, vomit, feces or other bodily fluids are present.
• Ensure that workers conducting aerosol-generating procedures such as intubation or bronchoscopy perform the procedures in an airborne infection isolation room, if feasible, or at least in a private room with the door closed. Employees exposed to these procedures must use NIOSH-approved respirators.

Cal/OSHA reminds all employers and workers that any suspected cases of Ebola must be promptly reported to the local public health department.

As always, please contact your HR Business Partner if you have any questions.