In light of the Ebola virus outbreak abroad and the recent Ebola cases in the U.S., employers should be aware of the laws implicated in their treatment of employees. Though employment issues related to Ebola may appear to be novel, employers faced very similar issues in the 1980s involving AIDS, and more recently in 2009 related to the H1N1 pandemic. In each situation, employers had to ensure that they maintained a safe workplace for employees and also properly addressed employee concerns.
When confronting issues related to an employee who may have been exposed to the Ebola virus, employers should be aware of the legal requirements of the Americans with Disabilities Act (“ADA”). Under the ADA, employers are permitted to ask employees where they intend to travel or where they recently traveled because the questions are non-disability related questions. However, if an employer learns that an employee has possibly been exposed to the Ebola virus, the employer may desire to make additional inquiries related to the level of the employee’s exposure or even require the employee to submit to a medical examination. In such cases, employers should be aware that disability-related inquiries and employer required medical examinations are allowed under the ADA if they are job-related and consistent with business necessity. To meet this standard, an employer must have a reasonable belief, based on objective facts, that an employee’s ability to perform essential job functions will be impaired or that the employee poses a direct threat (a significant risk of substantial harm) due to a medical condition. Given the high risk of transmission (the Ebola virus is present not only in an infected person’s blood, but also his or her saliva and perspiration), a compelling argument can be made that a person who has been in contact with someone who has Ebola or who has recently traveled to a country affected by the disease constitutes a direct threat to other employees in the workplace. Employers should, however, consult legal counsel before making such a determination.
If an employee in fact contracts the Ebola virus or if the employee’s parent, child, spouse, or domestic partner (depending on the particular state’s definition of marriage), contracts the virus, the virus certainly will be considered a serious medical condition under the Family Medical Leave Act (FMLA), which entitles an employee to twelve weeks of unpaid leave to recover or to care for his or her family member. The FMLA also generally protects the right of most employees to reinstatement following a protected period of FMLA leave.
Employers also may encounter employees who refuse to work for fear of exposure to the Ebola virus in the workplace. Though employee refusals may be disruptive to an employer’s work environment, employers should be mindful of employee protections under the Occupational Safety and Health Act (“OSHA”) and the National Labor Relations Act (“NLRA”). OSHA protects an employee’s right to refuse to work if the employee reasonably believes that he or she is exposed to an imminent danger. Additionally, if two or more employees refuse to work due to fears about exposure to Ebola, or if one employee advocates for a group of employees to refuse to work, these actions may be protected under the NLRA as concerted activity, even if the workforce is non-unionized. In these situations, employers should promptly address employee concerns regarding exposure to the Ebola virus to reassure employees that their workplace is safe. Employers also should consult with legal counsel before taking any adverse action against an employee who refuses to work for fear of contracting the Ebola virus in the workplace.
Recently, the Centers for Disease Control and Prevention (“CDC”) released a host of information about the Ebola virus and guidance on the monitoring and movement of persons exposed to the Ebola virus. This may be viewed here. Employers should familiarize themselves with the CDC guidance, as well as any guidance issued by public health departments in the employer’s state, follow any applicable guidance, and share the information with their employees.