On October 30, 2014, the National Nurses United (NNU) announced that nurses across the country will protest on November 12 to demand tougher Ebola protections. Specifically, nurses from California to Maine will hold strikes in 12 U.S. states and the District of Columbia, highlighted by a massive two-day strike of 18,000 nurses at 66 healthcare facilities in California. NNU anticipates protests will be conducted in many other states as it is ratcheting up its efforts to contact nurses across the country to participate.
NNU’s Executive Director RoseAnn Demoro said, “With the refusal of hospitals across the country to take seriously the need to establish the highest safety precautions for when an Ebola patient walks in the door, and the failure of our elected leaders in Washington to compel them to do so, America’s nurses say they have to make their voices heard a little louder.” In particular, NNU demands that all U.S. hospitals use the highest level of Ebola-specific safeguards until the scientific community determines that those precautions are unnecessary. The measures at issue include the use of full-body hazmat suits that leave no skin exposed, the use of air-purifying respirators, and continuous training for personnel who could encounter an Ebola patient.
These protests are illustrative of the latest concerns for U.S. healthcare employers, as they wrestle with how best to address the workplace and safety issues associated with Ebola – from consideration of restricting international travel, conducting medical inquiries and potential quarantines for employees who have traveled, granting leave from work, and educating management and employees. As the risk of exposure to Ebola continues to evoke concerns among the workforce, particularly in the healthcare industry, employers will need to keep a keen eye on their obligations under both federal and state laws.
Under the National Labor Relations Act, employees have the right to engage in “protected concerted activity” to address workplace and safety concerns. Moreover, the Americans with Disabilities Act prohibits employers from making inquiries regarding employees’ medical conditions or requiring medical examinations, unless the inquiries or examinations are job-related and consistent with business necessity. Fear of contraction alone does not justify inquiries regarding Ebola; the employee in question must pose a direct threat to the workplace. In this light, the ADA allows employers to require that employees report the actual diagnosis of a contagious illness, such as Ebola. Among other obligations, employees must be protected from retaliation if they choose to exercise their right to remove themselves from a work situation because they have reasonable belief that they are in imminent and serious danger of their life or health.
As NNU rallies its nurses to conduct Ebola-related strikes and the disease remains in the news, employers should not only be cognizant of the serious health threat Ebola poses, but also the legal implications of noncompliance with existing federal and state laws.