In the wake of the world’s largest Ebola Virus Disease (EVD) outbreak in history, Americans have been inundated with media hype surrounding the disease, and the government and employers’ perceived inadequacy in their response. While the threat of a widespread EVD outbreak in the United States is minimal, health care providers in particular, but also airlines and travel-related companies, mortuary employers and laboratories should all take steps to educate and protect their workforce. As experience has taught, educating and openly communicating with employees helps reduce truancy, limits discriminatory activity, and ultimately creates a healthier and safer workforce. Still, many employers are unsure what they can and cannot require of their employees. Below, we touch on some of the most pertinent topics that employers in these critical sectors may want to consider as they confront employees and customer/patient pools concerned about EVD.
First and foremost, employers have a duty under the Occupational Safety & Health Act (Act) to provide a safe and healthy workplace free from recognized hazards that may cause injury or death. Because exposure to a single viral particle can result in development of EVD, and because EVD may be fatal on average in 50% of cases worldwide, the Occupational Safety & Health Administration (OSHA) is encouraging employers to protect their workers while on the job by following recommendations published by the Centers for Disease Control and Prevention, the National Institute for Occupational Safety and Health, and the World Health Organization. Depending on employees’ risk of exposure to EVD based on their industry, OSHA may require development of a plan (typically called an “OSHA Response Plan”) with specific procedures to protect employees against infection. Furthermore, governors and state and local health agencies may have stricter requirements or provide special guidance for employers to protect employees from infection that should be consulted prior to implementing an OSHA Response Plan, as demonstrated by New York and New Jersey’s recently implemented quarantine mandates. Legal counsel should be consulted to ensure all applicable requirements are covered by any plan prior to implementation.
Another issue many employers may grapple with is whether to place an employee either returning from West Africa or who was exposed to EVD on a mandatory leave for the 21-day incubation period of EVD to protect other workers from potential infection. There are a number of considerations employers will face if they decide to implement a mandatory 21-day leave policy for such workers, including: whether or not the leave should be paid; how to appropriately identify workers subject to a mandatory leave; how to effectively and appropriately communicate such a policy to the workforce to avoid possible national origin or disability discrimination issues; and whether or not any or all of the leave is covered by the employer’s short-term disability or workers compensation insurance, or is protected under state and federal family and medical leave laws. Additionally, employers will want to review their existing internal leave policies and procedures to ensure they are providing employees with the leave to which they are entitled under applicable state and local sick and vacation leave laws.
Finally, whether or not employers have a unionized workforce, there are fair labor-related concerns that employers should consider in implementing new policies and communicating protocol with the workforce. For employers with bargaining units, effective communication with and involvement of union representation during the development of employee safety protocols will help foster positive relations and minimize the risk that unions will publicize any perceived lack of preparedness by the employer. In fact, many contracts require consulting with the union when implementing new safety procedures, even if the employer need not oblige union safety requests. Unions are also generally entitled to access to detailed information about safety in the workplace, including training protocols and injury/illness reports. Thus, open communications with unions while developing EVD-preparedness protocols will help avoid conflicts and will keep the employer out of the media.
For non-unionized facilities, there are protections under the National Labor Relations Act for workers engaged in concerted activity. For instance, if a group of employees decide not to come to work to protest a perceived lack of action by the employer to protect from EVD exposure, this action may be considered “protected concerted activity” and, if it is, will expose an employer to liability should it take adverse action against the employees for their absenteeism.
Additional employment-related issues will inevitably arise as more citizens are exposed to EVD either by traveling to West Africa or by treating infected patients in the United States without proper protection. Employers should be proactive in creating policies to protect their workforce and to confront these issues, if for no other reason than to foster good employee relations and engender trust with their workforces. We have additional resources available to assist employers in identifying unique issues they face in their industry – whether it be health care, travel, emergency response, laboratory, or others – that will assist in effectively navigating the legal issues surrounding EVD preparedness. For health-sensitive industries, legal counsel should be consulted while preparing for employee training and implantation of any new policies, whether they are related to OSHA compliance, employee leave, or unions.