By: Patrick Lail
[Elarbee Thompson] felt it would be beneficial to share some of the most common questions we are receiving from our clients about Ebola and their employees' fears about it. Although the specific circumstances of each employer may vary and call for a modified response, we hope this general information contributes to a measured and appropriate response to the issues raised by this developing situation.
- Where can I get information about Ebola?
We recommend following informed and updated sources for current information about the disease - such as the CDC and the World Health Organization. Such sources, rather than general media, provide a sound basis for managing and addressing employees' worries and concerns. Prudent employers will also monitor the mood and morale of employees with regard to the disease, and craft tailored educational responses to address the specific issues causing concern.
- Can I place an employee who may have been exposed to Ebola on paid leave for the 21-day incubation period to avoid any risk to other employees and customers?
Yes, although this approach carries some potential liability. For example, placing an asymptomatic employee on leave could give rise to a claim that the employer has "regarded" the employee as disabled in violation of the Americans with Disabilities Act (ADA). Also, if the employer unilaterally places the employee on leave and the employee is presently asymptomatic, the leave should not be counted against the employee's leave entitlement under the Family and Medical Leave Act (FMLA).
On the other hand, if an employee displays Ebola symptoms and has traveled to West Africa or has otherwise been exposed to the virus, the employee likely presents an ADA "direct threat" of harm to himself or others, and an employer's action of placing the employee on leave is not likely to give rise to ADA liability. The latter facts would also support the application of FMLA leave. In any event, paying the employee during any such leave makes it less likely the employee would raise a claim and, if a claim were asserted, paid leave may deprive the employee of meaningful damages.
- What can I do about employees who refuse to work with someone whom they believe has been exposed to Ebola?
First, we recommend that employers take employees' concerns seriously and respond with education from the sites listed in the first question above. While Ebola is a scary virus, scientists have determined it is transmissible only at certain stages of the disease and only through bodily fluids (i.e., it is not an airborne disease).
Second, employers should be mindful that employees have rights under the Occupational Safety and Health Act (OSHA) and the National Labor Relations Act to protect themselves from imminent danger and to speak out about potential risks in the workplace. An employee's OSHA right not to work due to an imminent risk must be in good faith and is generally triggered only after asking the employer to eliminate the danger and the employer's refusal to do so. Thus, reluctance to work due to Ebola concerns should be taken seriously, and employers should engage in meaningful, documented dialogue about employees' concerns and the employer's response before resorting to discipline for failure to perform.
As each situation is unique, we recommend that employers seek advice of counsel before making decisions about placing employees on leave, requiring medical clearance documentation based on Ebola concerns, or disciplining employees for failure to report to work or perform certain tasks. If you have questions about the unique circumstances your workplace or workforce present as they relate to the current Ebola situation, please contact your Elarbee Thompson attorney or respond to this email.