November 3, 2014
Practice Group:
Labor, Employment
and Workplace Safety
Ebola and Other Pandemic Outbreaks: Insights and
Legal Considerations for U.S. Employers
United States Labor, Employment and Workplace Safety Alert
By Suzanne J. Thomas
The Ebola Disease.1
According to the U.S. Occupational Safety & Health Administration (OSHA), Ebola
hemorrhagic fever (sometimes called Ebola Virus Disease, EVD or Ebola) is the disease
caused by infection with an Ebola virus. Workers performing tasks involving close contact
with symptomatic individuals with Ebola or in environments contaminated or reasonably
anticipated to be contaminated with infectious body fluids are at risk of exposure. Ebola
viruses are capable of causing severe, life-threatening disease. Ebola is usually marked by
fever, muscle pain, headache and sore throat. The illness progression includes nausea,
vomiting, diarrhea and impaired organ function. In some cases, rash, internal and/or
external bleeding and death may occur. Many people who get Ebola die from it.
https://www.osha.gov/SLTC/ebola/
On August 8, 2014, the Ebola outbreak in West Africa was declared by the World Health
Organization (WHO) to be a Public Health Emergency of International Concern because it
was determined to be an “extraordinary event” with public health risks to other countries.
The possible consequences of further international spread are particularly serious
considering the following factors:
• the virulence (ability to cause serious disease or death) of the virus,
• the widespread transmission in communities and healthcare facilities in the currently
affected countries, and
• the strained health systems in the currently affected and most at-risk countries.
According to WHO, the time interval from infection with the Ebola virus to onset of symptoms
is two to 21 days (the “Incubation Period”); someone who has not contracted the disease
within 21 days after the last exposure should be past risk of infection. Humans are not
infectious until they develop symptoms, such as a fever.
http://www.who.int/mediacentre/factsheets/fs103/en/
The U.S. Department of Health and Human Services (HHS), Centers for Disease Control
and Prevention (CDC) and WHO are appropriate sources of medical information about Ebola
and any other pandemic. OSHA, the U.S. Department of Labor, the U.S. Equal Employment
Opportunity Commission (EEOC) and state and local agencies also may provide input or
resources. According to the EEOC, “During a pandemic, employers should rely on the latest
1
This article is published as of November 3, 2014. The Ebola situation is not static. Because of the constantly changing
issues that arise due to the Ebola outbreak, please seek up-to-date analysis of issues when considering taking action due
to the Ebola outbreak.
Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
U.S. Employers
CDC and state or local public health assessments. While the EEOC recognizes that public
health recommendations may change during a crisis and differ between states, employers
are expected to make their best efforts to obtain public health advice that is
contemporaneous and appropriate for their location, and to make reasonable assessments
of conditions in their workplace based on this information.”
Are U.S.-Based Employees Currently at Risk in the Workplace?
As currently noted by OSHA, Ebola does not now pose a threat to most U.S.-based workers.
However, exposure to the virus or someone with Ebola may be more likely in certain sectors,
including the healthcare, first responder, mortuary and/or death care, infectious waste
disposal and airline servicing industries. Despite the level of risk, all employers should
consider taking action to protect their workers from on-the-job exposure to the Ebola virus.
Legal Considerations Regarding Ebola and Workplace Decisions for U.S.
Employers.
In addition to operational issues, such as potential insurance coverage implications, business
interruption and continuity and adversarial claims against entities or individuals, the Ebola
outbreak has begun to raise legal questions for U.S. employers. While the implications of
the Ebola outbreak are severe, many of the issues and questions regarding Ebola are not
unique to this particular pandemic. Guidance from prior pandemics is relevant to the Ebola
pandemic.
When faced with a public health threat such as Ebola, employers should keep in mind some
important overarching legal principles in making workplace decisions, including the following:
• Employers have a general duty under federal and state occupational safety and health
laws to maintain a safe workplace. OSHA’s position is clear that employers must protect
their workers from exposure to Ebola virus on the job.
• Employers are regulated by applicable federal and state laws that protect people with
serious health conditions and disabilities. At least some manifestations of Ebola infection
will likely constitute a “serious health condition” and may be classified as a disability.
Such protections include the following:
o
provisions related to employee leaves,
o
provisions pertaining to the privacy of medical information, and
o
laws that ban discriminating against employees based on any illness that may
constitute a disability or be regarded as a disability, or an association with someone
with such a disability.
• Employers should respect employees’ rights under applicable state laws to be free from
defamation (libel or slander) by their employer (such as statements about infection that
are false).
• Employers should comply with employees’ privacy concerns, including privacy related to
medical information, while balancing the workforce’s need to know about a possible
exposure to Ebola.
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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• Employers should respects rights under labor law pertaining to the unionized workplace,
including the duty to bargain in good faith with the employees’ labor unions regarding
changes in terms and conditions of employment.
• Employers should not unlawfully retaliate against workers because they raise concerns
about workplace safety or report a job-related injury.
More Specific Information under the Americans with Disabilities Act and State
Disability Discrimination Laws.
The laws and legal principles noted above form the backdrop for answering a variety of
questions that employers may have concerning their rights and obligations in the face of the
Ebola outbreak. Additional resources also provide helpful information to employers. For
example, in 2009, the EEOC issued a technical assistance memorandum (TAM) relating to
implications under the Americans with Disabilities Act (ADA) and a prior influenza
pandemic—“Pandemic Preparedness In The Workplace And The Americans With Disabilities
Act” (http://www.eeoc.gov/facts/pandemic_flu.html). The TAM recognizes that “the ADA,
which protects applicants and employees from disability discrimination, is relevant to
pandemic preparation in at least three major ways. First, the ADA regulates employers’
disability-related inquiries and medical examinations for all applicants and employees,
including those who do not have ADA disabilities. Second, the ADA prohibits covered
employers from excluding individuals with disabilities from the workplace for health or safety
reasons unless they pose a ‘direct threat’ (i.e., a significant risk of substantial harm even with
reasonable accommodation). Third, the ADA requires reasonable accommodations for
individuals with disabilities (absent undue hardship) during a pandemic.” Emphasis added,
endnotes omitted.
The TAM also includes an FAQ section, which provides ADA-covered employers with EEOC
guidance in addressing a pandemic without violating the ADA. While there is no assurance
that during this Ebola outbreak the EEOC will continue to follow the guidance in the TAM, as
published, the TAM indicated that it could be helpful in future pandemics. For example, the
TAM provides guidance on the following issues:
• There are ADA-compliant ways for employers to identify which employees are more
likely to be unavailable for work in the event of a pandemic. Employers may make
inquiries that are not disability-related. An inquiry is not disability-related if it is designed
to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed
public transportation). The EEOC provides the following example of an ADA compliant
inquiry relating to a pandemic:
ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY
Directions: Answer “yes” to the whole question without specifying the factor that applies
to you. Simply check “yes” or “no” at the bottom of the page.
In the event of a pandemic, would you be unable to come to work because of any one of
the following reasons:
If schools or day-care centers were closed, you would need to care for a child;
If other services were unavailable, you would need to care for other dependents;
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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If public transport were sporadic or unavailable, you would be unable to travel to work;
and/or;
If you or a member of your household fall into one of the categories identified by the CDC
as being at high risk for serious complications from a pandemic virus, you would be
advised by public health authorities not to come to work (e.g., pregnant women; persons
with compromised immune systems due to cancer, HIV, history of organ transplant or
other medical conditions; persons less than 65 years of age with underlying chronic
conditions; or persons over 65).
Answer: YES______ NO_______
• Employers may exclude “direct threats” from the workplace. If, despite reasonable
accommodation, an individual with a disability poses a direct threat to workplace safety
because of a disability, including one caused by a pandemic disease, that employee is
not protected by the nondiscrimination provisions of the ADA.
• Sick employees can often be sent home. An employer can send employees home if
they display related symptoms during a pandemic, even if the illness may not be a
disability; the action would be permitted under the ADA if the illness were serious enough
to pose a direct threat.
• Employers may ask certain symptom-related questions. ADA-covered employers
may ask employees who report feeling ill at work or who call in sick if they are
experiencing symptoms related to the pandemic.
• Employees are entitled to confidentiality. Employers are required to maintain all
information about employee illness as a confidential medical record in compliance with
the ADA.
• Employers should take caution even about asking to take employees’
temperatures. Employers should be cautious about requiring employees to allow their
temperature to be taken by employer representatives, as doing so is a medical
examination; the ADA limits an employer’s ability to require medical examinations. If a
pandemic becomes widespread in the community as assessed by state or local health
authorities or the CDC, then employers may potentially measure employees’ body
temperature. Employers should be aware, however, that during the Incubation Period,
even someone who develops Ebola may not have a fever before becoming symptomatic.
• Employers may ask certain travel-related questions. If an employee returns from
travel during a pandemic, the employer does not need to wait until the employee develops
symptoms to ask questions about exposure to the pandemic during the trip because
those would not be disability-related inquiries. If the CDC or state or local public health
officials recommend that people who visit specified locations remain at home for several
days until it is clear they do not have pandemic symptoms, an employer may ask whether
employees are returning from these locations, even if the travel was personal.
• Employers should not ask about other medical conditions. During a pandemic, an
employer may not ask employees who do not have related symptoms to disclose
whether they have a medical condition that the CDC says could make them especially
vulnerable to complications from the pandemic. If an employee voluntarily discloses
(without a disability-related inquiry) that the employee has a specific medical condition or
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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disability that puts him or her at increased risk of related complications, the employer is
required to keep this information confidential. The employer may ask the employee to
describe the type of assistance the employee thinks will be needed (e.g., telework or
leave for a medical appointment).
• Employers should be cautious about making inquiries of asymptomatic employees.
If a pandemic becomes more severe or serious according to the assessment of local,
state or federal public health officials, ADA-covered employers may have sufficient
objective information from public health advisories to reasonably conclude that employees
will face a direct threat if they contract a pandemic disease. Only in this circumstance
may ADA-covered employers make disability-related inquiries or require medical
examinations of asymptomatic employees to identify those at higher risk of complications.
• Telework may be an appropriate option. An employer may encourage employees to
telework (i.e., work from an alternative location such as home) as an infection-control
strategy during a pandemic. Telework also may be a reasonable accommodation. This
may be particularly true for employees who face voluntary or involuntary quarantine.
Employees with disabilities that put them at high risk for complications of a pandemic may
also request telework as a reasonable accommodation to reduce their chances of
infection during a pandemic. If an employee with a disability needs the same reasonable
accommodation at a telework site that the employee had at the workplace, the employer
should provide that accommodation, absent undue hardship. In the event of undue
hardship, the employer and employee should cooperate to identify an alternative
reasonable accommodation.
• Employers may adopt infection-control practices. During a pandemic, an employer
may require its employees to adopt infection-control practices, such as regular hand
washing and proper tissue usage and disposal, at the workplace.
• Employers may require use of protective equipment. During a pandemic, an
employer may require its employees to wear personal protective equipment (e.g., face
masks, gloves or gowns) designed to reduce the transmission of pandemic infection.
• Employers may not compel employees to take vaccines. An employer covered by the
ADA and Title VII of the Civil Rights Act of 1964 may not compel all of its employees to
take a vaccine, regardless of their medical conditions or their religious beliefs during a
pandemic.
• An ADA-covered employer may require employees who have been away from the
workplace during a pandemic to provide a doctor’s note certifying fitness to return
to work. Such inquiries are permitted under the ADA, either because they would not be
disability-related or, if the pandemic was truly severe, they would be justified under the
ADA standards for disability-related inquiries of employees.
Commonly Asked Questions Regarding Ebola and the Workplace.
Employers may have or be asked Ebola outbreak-related questions such as the following:
1. May employers rely just on the policies or procedures that they may have adopted
to address the recent swine flu pandemic? While procedures developed for prior
pandemics may provide a helpful starting point for dealing with the Ebola outbreak, the
current pandemic requires consideration of many other issues. For example:
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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• HHS advises employers to begin their pandemic planning by identifying a “pandemic
coordinator and/or team with defined roles and responsibilities for preparedness and
response planning.”
• The consequences of Ebola may be more severe than the swine flu pandemic. People
who contracted the swine flu may or may not have been considered disabled under
disability laws. It is more likely that individuals who contract Ebola may be considered
disabled under such laws. Methods of communication of the disease also differ.
Employers whose workers may be exposed to an Ebola virus on the job should be aware
of reporting obligations to national, state or local health authorities.
• Individuals in the Incubation Period may be subject to voluntary or involuntary isolation or
quarantine. Some states have determined to isolate or quarantine or monitor the
movement and activities of healthcare workers who arrive from certain countries most
affected by the Ebola pandemic; however, state and local approaches to public safety
needs may continue to and change evolve as both the pandemic and knowledge about it
progress.
• “With the complex nature and seriousness” of the Ebola outbreak, the CDC created
interim guidance for monitoring people potentially exposed to Ebola and for evaluating
their intended travel, including the application of movement restrictions when indicated.
On November 1, 2014, the CDC updated its Interim U.S. Guidance for Monitoring and
Movement of Persons with Potential Ebola (the “Guidance”). The Guidance established a
“low (but not zero) risk” category; adding a “no identifiable risk” category; modified the
recommended public health actions in high, some, and low (but not zero) risk categories;
and added recommendations for specific groups and settings.
The Guidance defines four levels of risk—“high,” “some,” “low (but not zero)” and “no
identifiable” to assist in assessing the potential that someone recently could have been
exposed to the Ebola virus. http://www.cdc.gov/vhf/ebola/exposure/monitoring-andmovement-of-persons-with-exposure.html.
Note that state or local agencies may not concur with or follow at least some aspects of
the Guidance.
The Guidance also provides the CDC’s most recent updates to state and local heath
agencies about potential monitoring and movement of individuals in the top three risk
categories. The concepts of “active monitoring” and “direct active monitoring” are
defined:
Active monitoring means that the state or local public health authority assumes
responsibility for establishing regular communication with potentially exposed
individuals, including checking daily to assess for the presence of symptoms and
fever, rather than relying solely on individuals to self-monitor and report symptoms if
they develop.
Direct active monitoring means the public health authority conducts active monitoring
through direct observation. The purpose of active (or direct active) monitoring is to
ensure that, if individuals with epidemiologic risk factors become ill, they are
identified as soon as possible after symptom onset so they can be rapidly isolated
and evaluated. Active (or direct active) monitoring could be either conducted on a
voluntary basis or compelled by legal order. Active (or direct active) monitoring and
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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prompt follow-up should continue and be uninterrupted if the person travels out of the
jurisdiction.
According to the Guidance, active monitoring should consist of, at a minimum, daily
reporting of measured temperatures and symptoms consistent with Ebola (including
severe headache, fatigue, muscle pain, weakness, diarrhea, vomiting, abdominal pain or
unexplained hemorrhage) by the individual to the public health authority. Temperature
should be measured using an FDA-cleared thermometer (e.g., oral, tympanic or
noncontact). People being actively monitored should measure their temperature twice
daily, monitor themselves for symptoms, report as directed to the public health authority
and immediately notify the public health authority if they develop fever or other symptoms.
Initial symptoms can be as nonspecific as fatigue. Clinical criteria for required medical
evaluation according to exposure level have been defined (see Table) and should result in
immediate isolation and evaluation. Medical evaluation may be recommended for lower
temperatures or nonspecific symptoms based on exposure level and clinical presentation.
For direct active monitoring, a public health authority directly observes the individual at
least once daily to review symptom status and monitor temperature; a second follow-up
per day may be conducted by telephone in lieu of a second direct observation. Direct
active monitoring should include discussion of plans to work, travel, take public
conveyances [transportation] or be present in congregate locations. Depending on the
nature and duration of these activities, they may be permitted if the individual has been
consistent with direct active monitoring (including recording and reporting of a second
temperature reading each day), has a normal temperature and no symptoms whatsoever
and can ensure uninterrupted direct active monitoring by a public health authority.
For healthcare workers under direct active monitoring, public health authorities can
delegate the responsibility for direct active monitoring to the healthcare facility’s
occupational health program or the hospital epidemiologist. Facilities may conduct direct
active monitoring by performing fever checks on entry or exit from the Ebola treatment
unit and facilitate reporting during days when potentially exposed healthcare workers are
not working. The occupational health program or hospital epidemiologist would report
daily to the public health authority.
The Guidance also defines the following terms and describes the CDC’s views of the
appropriate use of Public Health Orders (defined below):
“Controlled movement” limits the movement of people. For individuals subject to controlled
movement, travel by long-distance commercial conveyances (e.g., aircraft, ship, bus, train)
should not be allowed; if travel is allowed, it should be by noncommercial conveyance such
as private-chartered flight or private vehicle, and occur with arrangements for uninterrupted
active monitoring. Federal public health travel restrictions (Do Not Board) may be used to
enforce controlled movement. For people subject to controlled movement, use of local public
transportation (e.g., bus, subway) should be discussed with and only occur with approval of
the local public health authority.
“Isolation” means the separation of an individual or group who is reasonably believed to be
infected with a quarantinable communicable disease from those who are not infected to
prevent spread of the quarantinable communicable disease. An individual could be
reasonably believed to be infected if he or she displays the signs and symptoms of the
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
U.S. Employers
quarantinable communicable disease of concern and there is some reason to believe that an
exposure had occurred.
“Quarantine” in general means the separation of an individual or group reasonably believed
to have been exposed to a quarantinable communicable disease, but who is not yet ill (not
presenting signs or symptoms), from others who have not been so exposed, to prevent the
possible spread of the quarantinable communicable disease.
Equitable and ethical use of “Public Health Orders” includes supporting and compensating
persons who make sacrifices in their individual liberties and freedoms for the public good.
Specifically, considerations must be in place to provide shelter, food and lost wage
compensation, and to protect the dignity and privacy of the individual. Persons under public
health orders should be treated with respect and dignity. Considerable thoughtful planning is
needed to implement public health orders properly.
The Guidance also: provides “recommendations for evaluating Ebola exposure risk to
determine appropriate public health actions,” addresses “early recognition and reporting of
suspected Ebola virus exposures, and factors to evaluate in assessing the ‘need for medical
evaluation or active (or direct active) monitoring and the application of movement restrictions
when indicated,’” discusses recommended approaches to those potentially at risk individuals
who are asymptomatic, potentially symptomatic and symptomatic, provides specific guidance
to healthcare and related workers, and those who work on public transportation and provides
a table summary of issues addressed in the Guidance. Because of the changing nature of
various recommendations, please review the most recent updates from the CDC, and
state and local health agencies.
• Employers of healthcare workers, first responders, mortuary/death care workers, waste
disposal, clean-up and sanitation workers, airline workers and others most likely to be
exposed to an Ebola infection should take extra steps to ensure that they are prepared to
provide all necessary protective gear and to comply with all OSHA and related standards
relating to dealing with the Ebola pandemic while protecting workers. Many such
employers may be required to meet CDC standards for education and training in the
prevention and treatment of communicable diseases, including Ebola.
• According to a survey released on October 24, 2014 by the Association for Professionals
in Infection Control and Epidemiology, only about 6 percent of American hospitals have
infection control procedures in place to effectively and safely handle Ebola patients.
According to the survey, the majority of hospitals (40 percent) said they were “somewhat
prepared.”
• The AFL-CIO is encouraging the U.S. government to implement mandatory and more
robust standards and other protections around Ebola for healthcare workers. Employers
should remember that it is unlawful to retaliate against workers who complain about
workplace safety issues or report injury.
• Employers should encourage employees to seek medical care immediately if they
develop fever, headache, muscle pain, diarrhea, vomiting, stomach pain or unexplained
bruising or bleeding. The CDC recommends that individuals who experience such
symptoms should limit their contact with other people until and when they go to the
doctor, and that they should not travel anywhere else besides a healthcare facility.
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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2. How do employers prepare for a pandemic without unnecessarily causing or
compounding employee fears? Prudent employers plan and prepare for dealing with a
pandemic, even if it is not clear that any of their workers would be affected. Employees
may have questions about how their employers will deal with a pandemic. Employers
should be prepared to objectively respond to such questions, without being
sensationalistic or overstating the possibility that Ebola will directly affect their workplace.
Employers should consider communicating with employees to educate them about
current public health recommendations, and to let them know that the company is
following the situation and will take steps to safeguard their health. Employees should
also be instructed to notify an appropriate manager promptly if they have Ebola-related
symptoms so that steps may be taken to avoid spreading the virus to others.
3. Can employers prevent travel to certain countries? It is prudent for employers to
consider restricting unnecessary business travel to the main areas in Africa affected by
Ebola. Employers generally do not have a right to prohibit personal travel and should
take care not to create a perception of discrimination against employees based on
national origin.
4. What should employers do to maintain a safe workplace? Employers should take
steps to prevent and/or control the spread of the Ebola virus based upon the advice of
credible public health organizations such as the CDC and OSHA. See, for example,
http://www.cdc.gov/vhf/ebola/index.html; https://www.osha.gov/SLTC/ebola/. In making
decisions about individual employees who may have been exposed to or may test
positive for Ebola, employers should rely upon the advice of doctors or other qualified
medical professionals who are knowledgeable on this subject. OSHA’s and CDC’s
website pages on Ebola provide substantial information regarding the protection of
healthcare and other workers who may be most at risk for contact with the Ebola virus.
5. May an employer require an employee to stay away from the workplace if the
employer or others have concerns about the employee’s exposure to Ebola?
Generally, national, state and local health agencies—not employers—will determine if an
individual is subject to isolation, voluntary or involuntary quarantine. Separately, under
the ADA and many state laws, employers may not discriminate against an employee with
a disability and must engage in an interactive process to determine whether there are
reasonable accommodations to enable the employee to perform the essential functions
of the job. Additionally, employers may not discriminate based on an employee’s
association with a person with a disability. While Ebola may or may not meet the
definition of a disability under federal law—this question has not yet been tested—it
certainly may qualify as a disability under the laws of some states and may provide the
basis for employees to claim they were “regarded as” disabled. However, under the ADA
and some other state laws protecting disabled employees, an employer may, without
violating law, remove an employee from the workplace or restrict the employee’s access
if that employee poses a direct health or safety threat to the employee or others. An
employer who has concerns about a threat posed by a specific employee should obtain
solid medical authority regarding the risk posed by the employee before relying on health
risks in making employment decisions.
6. Does an employer need to permit employees to work from home? That depends. If
an employee is subject to isolation or voluntary or involuntary quarantine, as noted
above, consideration should be given to whether to allow the employee to telework
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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during the Incubation Period. If an employee is isolated or voluntarily or involuntarily
quarantined during the Incubation Period, and if the employee is capable of working, it
seems prudent to work with the employee regarding the potential to telework. If the
employer has a telework policy that allows employees to work remotely, the policy should
be applied consistently to employees who wish to work from home for reasons related to
a pandemic. Such policies typically allow employers discretion in determining whether a
job can be done remotely at required levels of productivity and quality without
compromise of the employer’s interests, such as confidentiality, network security and
need to supervise. Such policies typically also address issues that may create potential
liability for employers, such as the need for nonexempt employees to report all time
worked and safety precautions at the workplace. A well-written telework policy can
reduce the legal risks of allowing employees to work remotely. If an employer does not
have such a policy or has not reviewed its policy recently, this may be a good time to do
so, since it is in an employer’s best interest to allow employees who have been exposed
to an Ebola virus to work remotely or remain offsite during the Incubation Period.
7. May an employer tell employees that a particular employee has or is suspected of
having Ebola? Federal and state laws generally prohibit employers from disclosing
medical information about an employee to others. In a pandemic environment, there is
likely to be a high degree of interest, speculation and concern among members of the
workforce who believe they have a right to know if coworkers have been exposed.
Nonetheless, employers need to find ways to manage the situation without disclosing
confidential medical information. This could mean, for example, telling employees that
there has been exposure to Ebola at the workplace without disclosing the identity of the
person who brought the exposure to the workplace. Defamation and related claims may
arise if a person is wrongly attributed with being infected by Ebola.
8. What if an employee wants to wear a mask or other protective gear because he or
she is concerned about contracting Ebola from customers or coworkers? May an
employer prohibit this? An employer may prefer that employees not wear masks or
other protective gear at work for business reasons, whether it is the need for
unobstructed view of employee faces in certain types of work, clarity of voices in
speaking or the negative image portrayed to the public by the sight of an employee in
protective gear. Whether an employer may actually prohibit the wearing of protective
gear at the workplace will depend upon the circumstances.
As mentioned, OSHA requires employers to maintain a safe work place. If medical
advice recommended the use of protective gear in order to maintain health and safety at
a specific workplace, an employer would be hard-pressed to disregard such advice.
Even in the absence of a sweeping recommendation on the subject, an individual
employee may ask to wear protective gear as a reasonable accommodation for a
disability (such as immune system deficiency). An employer is required to provide
reasonable accommodation to qualified employees provided that the accommodations
do not create undue hardship for the employer. Whether such an accommodation is
required is determined on a case-by-case basis in view of all of the facts and
circumstances, commencing with an interactive dialogue between the employee and
employer. The burden of proving undue hardship is on the employer.
9. What should an employer do if an employee with symptoms or a diagnosis of
Ebola requests sick leave or paid time off (PTO), but has no remaining sick or PTO
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
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time? An employer should not allow an employee with Ebola to report to work. In
addition, employees who have been exposed due to travel or other ways that are publicly
discernable may be isolated or quarantined in their homes or elsewhere by local health
agencies. Thus, employers should consider revising their sick leave/PTO policies to
create an “excused absence” for workers who are voluntarily or involuntarily isolated or
quarantined and to allow employees with suspected or confirmed contagious illnesses
who have no remaining sick/PTO time to be “advanced” leave time or take unpaid
personal leave if they have no remaining accrued paid leave. Otherwise, such
employees may be faced with the potential of losing their jobs due to unexcused
absence and, thus, may even hide or fail to report their exposure or contagious illness.
To avoid abuse, the policy may be drafted to require advance approval of the employer
and/or confirmation of a medical professional.
Employers should also confirm whether they offer short-term disability coverage that may
be available to a person who suffers from an Ebola virus.
If the employee is infected related to the employee’s work, workers’ compensation
coverage should be explored.
10. What should an employer do if an employee requests FMLA leave due to Ebola? A
person who contracts Ebola almost undoubtedly will be considered to have an FMLAqualifying “serious health condition” that would allow an employee of a covered employer
(generally, one with 50 or more employees) to take job-protected FMLA leave with health
care benefit continuation to care for himself or herself or a close relative (a parent,
spouse or child). Employers should make sure they are up to speed on FMLA leave
policies and procedures, including when to recognize a condition as FMLA-qualifying in
the absence of a specific employee request for FMLA leave, and what forms to use to
document FMLA leave (updated per FMLA regulations). Employers should also be
aware that certain states have family and medical leave laws that may entitle employees
to additional leave and/or laws that require an employer to allow employees to use sick
leave or other time off to care for certain sick family members. Employers also should
keep in mind that even if the FMLA or similar state laws do not apply, an employee may
be entitled to a leave of absence as a reasonable accommodation for a disability under
federal or state law.
11. Should exempt employees be paid for time spent at home due to Ebola? In
general, employers should follow their policies relating to PTO to avoid claims of
disparate or unfair treatment. An exempt employee who chooses or is required by health
agencies to take time off due to illness (or to care for sick family members if allowed by
company policy or state law) and has accrued sick leave or PTO time remaining may be
eligible for pay under the applicable employer sick leave or PTO policy. If an exempt
employee chooses to take time off due to illness, but has exhausted his or her sick leave
or PTO time under company policy, the employee will generally be entitled to full pay for
any day in which the employee performs any work. If, on the other hand, an employer
does not provide sick leave or PTO benefits, the employer generally must pay an exempt
employee full pay for any workweek in which he or she performs any work. Technically,
“any” work could mean sporadic work such as checking email a few times a day. Taking
deductions in violation of these rules could have the inadvertent result of turning the
employee and others in the same position into nonexempt employees who are entitled to
overtime. To avoid this unintended result, employers should be very cautious in taking
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
U.S. Employers
deductions from exempt employees’ pay for time out sick due to an Ebola virus if the
employee has requested the time off. Finally, if an exempt employee is asked by his
employer not to come to work for part of a workweek (as opposed to the employee
requesting leave), the employee must generally be paid his or her full salary for that
week.
12. Should nonexempt employees be paid for time spent at home due to Ebola?
Nonexempt employees need to be paid in full for any work they perform remotely, with
appropriate overtime where applicable. If they perform no work while absent, they do not
need to be paid for the time away. However, employers should be cautious here as well:
nonexempt employees who check email or voicemail from home are performing work
during the time that they do so and should be reporting this time so that they can be paid
for it.
13. What role does the union play in regard to changes in terms and conditions of
work relating to a pandemic? Employers with a unionized workforce may have a duty
to bargain with applicable labor organizations regarding any modifications to the terms
and conditions of employment of their members related to the Ebola outbreak.
Even if the current Ebola outbreak does not end up directly affecting your workplace, the
issues and tips outlined above should be considered in preparation for potential future
disease outbreaks or disasters. This alert is not comprehensive and does not constitute
legal advice. All specific situations should be reviewed on a case-by-case basis.
Regional contacts:
Suzanne J. Thomas (Seattle)
suzanne.thomas@klgates.com
+1.206.370.6642
George P. Barbatsuly (Newark)
george.barbatsuly@klgates.com
+1.973.848.4104
April Boyer (Miami)
april.boyer@klgates.com
+1.305.539.3380
Christie A. Newkirk (Dallas)
christie.newkirk@klgates.com
+1.214.939.5438
Thomas H. Petrides (Los Angeles)
thomas.petrides@klgates.com
+1.310.552.5077
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Ebola and Other Pandemic Outbreaks: Insights and Legal Considerations for
U.S. Employers
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