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Ebola outbreak sparks legal questions for employers

Employers have dealt with health scares before. Maladies ranging from the common cold to virulent strains of flu often prompt employers to post hand-washing reminders, offer onsite vaccinations, and encourage sick employees to stay home. But the challenge intensifies in the midst of a disease outbreak as serious and frightening as Ebola. 

As the deadly disease spreads beyond the West African nations hit the hardest in the current outbreak to various parts of the world, employers need to make sure they’re aware of how their response to the crisis implicates laws on workplace privacy, discrimination, safety, compensation, leave time, and more.

Ebola basics
Ebola is characterized by fever, muscle pain, headache, and sore throat, according to information on the Occupational Safety and Health Administration (OSHA) website. As the disease progresses, victims suffer nausea, vomiting, diarrhea, and impaired organ function. Infected individuals show symptoms between two and 21 days after exposure, with eight to 10 days being most common. Depending on the strain and the person infected, the disease may be fatal in 50-90 percent of cases.

The U.S. Centers for Disease Control and Prevention (CDC) reports that the current outbreak is the largest in history. Just a handful of cases have been treated in the United States and Europe, but fear is widespread.

Some workers are more at risk than others since the disease is spread through contact with bodily fluids of people infected. The CDC has developed prevention and control recommendations for healthcare, laboratory, airline, and humanitarian workers. But with international travel common, workers in a variety of professions express concern.

Employer actions
Some employers may consider restricting travel to countries where the outbreak is most severe and/or quarantining employees returning after travel to those areas, but Bennet Alsher, a partner in the Atlanta office of FordHarrison LLP, advises employers to be careful about telling seemingly healthy workers to stay home.

“Quarantine post-travel raises potential wage and hour issues for salaried exempt employees,” Alsher says. “Under federal law, although an exempt employee need not be paid for any week in which no work is performed, the full salary must be paid for any week in which any work is performed. If the salaried employee is ready, willing, and able to work, deductions from pay may not be made for time when work is not available.”

Alsher also points out that if employers have collective bargaining agreements, they should review the relevant contract to make sure that any steps taken to quarantine or restrict travel are permissible under the contract.

Is your organization ready to meet its legal obligations and implement safety procedures in light of the new Ebola threat? On October 30, BLR will present Ebola in the Workplace: HR’s Legal and Practical Response Primer, followed by  HR’s Ebola Update: ADA Compliance, Mandated Leave, Travel Policies & Workplace Safety Answers on November 19. Tune in to one of these events to learn how to prepare the workplace to counter the threat of virus transmission from colleagues and customers and deal with the legal and privacy issues that can arise.

Fears and rumors and employee privacy rights
As fears of Ebola spread, employers may have employees afraid to come to work if they think the workplace presents a threat. Employers may wonder what rights employees have to stay away if they have a reasonable fear of an imminent danger. Alsher says under OSHA’s general duty clause, employers must provide safe workplaces, and the National Labor Relations Act also comes into play.

“A group of non-management, non-supervisory employees who decide to stay away from work may be engaged in ‘protected concerted activity,’ which is protected by Section 7 of the National Labor Relations Act and covers both union and nonunion employers,” Alsher says. Employers have more latitude and control in dealing with issues raised by managers and supervisors since they’re not covered by the NLRA.

“In other words, while it may be permissible to discipline a group of managers/supervisors who refuse to work because of fears of Ebola, it could be—emphasize ‘could be’—unlawful to discipline non-management, non-supervisory employees who do not come to work because of fears of Ebola,” Alsher says.

Employees hearing rumors of possibly infected coworkers may start asking for private health information. But Alsher points out that employers still have privacy responsibilities.

“Whether information is HIPAA protected or not depends on where the information came from,” Alsher says. But an employee on leave because of Ebola-related concerns is possibly on leave under the Family and Medical Leave Act (FMLA). He advises keeping that information confidential and sharing it only with those with a need to know.

“If the information is coming from an employment record, such as an FMLA document, there is no HIPAA issue,” Alsher says, but the FMLA and the Americans with Disabilities Act “have their own separate confidentiality requirements that would necessitate an employer’s being very guarded in who that information is shared with.”

Alsher says employers need to keep state privacy laws in mind, too. “Bottom line: Tell employees who ask that we are not at liberty to share that information and will provide it only on a need-to-know basis.”

Employer tactics
Education is the best solution for dealing with fear. Alsher advises distributing CDC guidelines, meeting with employees to address their concerns, and asking local public health professionals to talk to employees.

Employers may want to develop policies to address the issue, but Alsher doesn’t recommend developing a policy specifically related to Eboa. “We need to see how this plays out,” he says. “Some employers already have contagious disease policies. Whether an employer does or does not develop a policy needs to be addressed on a case-by-case basis. A health care provider will most certainly have requirements that are different from a manufacturing concern.”

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