Quirky Question #244, Ebola goes viral
The recent media coverage of Ebola has been overwhelming. As an employer, I want to be prepared and proactive to protect our employees and our business, but I also don’t want to overreact to what is seemingly a very small threat. What steps can, and should, I take to protect my employees? Does Ebola potentially implicate any state or federal employment law obligations that I should be aware of?
Answer: By Joel O’Malley and Scott Selix
This is a question we’re hearing with increasing frequency. The current Ebola outbreak is the worst in recorded history and has been labeled an “epidemic” by the World Health Organization (WHO). That, along with Ebola’s severe symptoms and seemingly endless media coverage, make Ebola a very frightening virus. On the other hand, there have been only a handful of cases of Ebola in the United States, and so far only twice has Ebola been contracted within the United States (both cases involved medical workers caring for a known Ebola patient).
Still, given Ebola’s high visibility and potential dramatic effects, employers would do well to consider now how they intend to address any problems associated with the Ebola virus, including employees’ concerns for their own health and well-being. Prudent employers should consider informing employees of the risks of Ebola, its symptoms, and simple preventative health measures that help to stop the spread of all diseases, including avoiding contact with bodily fluids of those that are ill, washing hands, and avoiding touching eyes, nose, or mouth.
Employers should also consider some of the legal concerns the potential Ebola threat might implicate. Due to the severe symptoms and high mortality rate associated with Ebola, an Ebola infection likely qualifies as a “severe health condition” under the Family Medical Leave Act (FMLA). Thus, an employee with an Ebola infection or who must care for a family member who is infected is entitled to leave under the FMLA. As a reminder, FMLA leave does not need be paid, and federal law does not prohibit employers from requiring that employees use paid leave contemporaneously with any FMLA leave.
We sometimes receive questions regarding whether an employee is entitled to refuse to come to work due to a concern about illness and, conversely, whether an employer can prohibit a sick, or suspected sick, employee from showing up for work (these questions typically are very common during flu season). Under the Occupational Safety and Health Act (“OSHA”), an employee may refuse to work due to safety concerns at the workplace, as long as those concerns are reasonable. At this point, concerns about contracting Ebola are probably not reasonable concerns that would allow an employee to refuse to come to work. OSHA mandates that all employers provide a safe workplace. Currently, the Centers for Disease Control (CDC) recommends that all people who have traveled to Ebola-affected areas monitor their symptoms and avoid contact with others for the 21-day incubation period. It may be advisable for employers to request that any employee who has traveled to an Ebola-affected area work from home or take a paid leave of absence for the duration of the 21-day incubation period. For any employee thought to have had close contact with an Ebola-infected person, employers should notify the CDC and seek its guidance regarding how to proceed.
While employers can discourage travel to, and inquire whether employees have recently returned from, Ebola-affected areas, employers cannot forbid travel to these areas. When discouraging travel or inquiring into travel history, employers need to be aware of federal and state discrimination laws. Any policy regarding Ebola should be applied uniformly. For example, employers should ensure employees who have ties to West Africa are not unlawfully questioned with respect to their exposure or their family members’ exposure to the Ebola virus.