Rich Meneghello, The Daily Record Newswire
The Ebola virus outbreak has captured the attention of the American public like few other stories have in recent memory. You can’t help but hear about the deadly illness and its apparent spread around the world on a daily basis. The stories are gripping and scary – a killer disease with no cure, no borders and nothing to stop it. Some employers are now wondering what they need to do in order to protect workers from the onslaught of this terrifying rampage.
The first thing all employers should do is take a deep breath and stop the panic. In the United States, Ebola is nowhere close to being a pandemic or even a national health crisis. Besides the fact that it is not easily spread, this virus is very controllable given the health care infrastructure and the resources our nation has at its disposal. Unless an employer sends workers on international travel, or is in the airline or health care industries, it likely will never have to deal with an Ebola situation.
That being said, employers across all fields should at least educate themselves about Ebola in the unlikely event they are caught up in the issue. The two most common questions I have been hearing from companies are: How do we keep our employees safe, and what do we do if we think one of our employees may have been exposed? Even if a company never sends its workers overseas, these same questions arise if a worker is about to take a personal trip to Africa, or if someone else who recently visited Africa will be on site in the near future.
The easiest way to explain to employers the best approach to these concerns is to recognize the balance between two federal workplace statutes: the Occupational Safety and Health Act and the Americans with Disabilities Act. On the one hand, OSHA is intended to protect workers, and all employers have a duty under the act to ensure that their employees are reasonably protected from all sorts of workplace hazards — including communicable diseases like Ebola. On the other hand, the ADA serves as a shield preventing employers from prying into the personal lives of workers, prohibiting unnecessary medical inquiries and barring workplace decisions motivated by irrational health concerns. Yes, you need to be cautious, but not at the expense of worker rights and privacy. So where do you draw the line?
An employer’s first priority is to ensure worker safety, and the easiest way to do this right now is to limit unnecessary international business travel. If a worker has done business or been on a personal trip in an area with high exposure rates, or if the company’s business is in one of the fields noted above, stay up to speed on the latest Centers for Disease Control and Prevention (CDC) communications.
The next priority is to ensure compliance with the ADA. The best way to stay on the right side of the law here is to make sure that any steps taken here with respect to employee medical information are based on concrete, objective data, and not spurned by fear, generalizations and stereotypes.
For example, if an employee has just returned from an African safari with his family, a company might walk itself into an ADA claim if it were to bar him from work for a 21-day quarantine period. Instead, if you know an employee has visited Africa, start by simply asking him where he has visited to determine the level of risk. You can follow up by asking the employee whether he has exhibited any virus symptoms and to keep you apprised if any symptoms appear.
Also, employers are permitted under the ADA to take an employee’s temperature at regular intervals, but only if this action is job-related and consistent with business necessity. In a case where a worker has been to Africa, or been exposed to someone with Ebola, or in a health care situation with possible disease-carriers, this standard is easily met.
Just don’t start giving blanket temperature exams to all employees without any real justification, because that’s when you’ll run afoul of the ADA. Only in very rare cases should a worker be barred from coming to work for the 21-day incubation period. And in such cases employers will most likely already be in touch with public health officials, given the heightened state of concern that will be present by that point.
As for handling the fear and concern that other employees might be feeling, the best thing to do is to reassure them that the company takes their health and safety very seriously and that active steps are being taken to ensure that they are not exposed to Ebola at work. Then share those steps with them; that should help comfort them and allay their fears.
If an employee refuses to come to work because of some legitimate or well-grounded fear of Ebola exposure, recognize that he or she might be protected under OSHA retaliation law or even the National Labor Relations Act and act accordingly; it is only when an employee is acting in bad faith (using Ebola as an excuse to take a few days off) that you should enforce attendance policies and others.
Like any other crisis, the Ebola scare will pass in time. But until then it’s up to you to ensure panic does not set in at your workplace and that you don’t walk yourself into a legal claim while trying to do the right thing.
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Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.
