The 2014 Ebola outbreak is the largest one of its type in history and the first in West Africa. A severe and often fatal disease in humans, Ebola symptoms include fever, headache, joint and muscle aches, weakness, diarrhea, vomiting, stomach pain and lack of appetite. Symptoms may appear two to 21 days after exposure to the Ebola virus, although eight to10 days is most common. The US Centers for Disease Control is taking precautions to prevent the spread of Ebola within the United States.
While protecting workplaces from the virus, employers in the US should comply with federal and state employment discrimination, leave and privacy laws.
Here are six questions US employers should ask themselves as they prepare to put in place best practices around the control of novel, highly infectious illnesses.
1. Can employers ask employees or job applicants about exposure to or require medical examinations for Ebola?
Not unless there is a direct threat. The general rule is that the Americans with Disabilities Act and similar state laws prohibit employers from making disability-related inquiries and requiring medical examinations of employees and applicants.
The exceptions are when employers have a reasonable belief based on objective evidence that employees will (1) be impaired by the medical condition in performing the essential job functions; or (2) pose a direct threat due to a medical condition. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Given the high rate of morbidity and mortality among Ebola-infected patients, the risk of human-to-human transmission and the lack of Food and Drug Administration-approved vaccines and therapeutics, the direct threat exception can be met if supported by objective evidence that the employee has been exposed to the virus.
The US Equal Employment Opportunity Commission’s ADA guidance on theH1N1 pandemic influenza in 2009 informs what employers can ask. According to the guidance, when employees return from travel during a pandemic, employers need not wait until employees develop symptoms to ask questions about exposure to the virus during the trip. Employers may ask whether employees are returning from high-risk locations, even if the travel was personal. Similarly, asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work. These would not be considered disability-related inquiries.
Likewise, under the ADA guidance, measuring an employee’s body temperature is a medical examination. However, if symptoms become more severe than the seasonal flu, or if the outbreak becomes widespread in the community as assessed by state or local health authorities or the Center for Disease Control, then employers may measure employees’ body temperature. Nonetheless, employers should be aware that some people in the early stages of the disease do not have fever.
Employers should remain as concerned as ever about inadvertent race and/or national origin discrimination, which are actionable under Title VII of the Civil Rights Act and comparable state laws. Because Ebola originated on the continent of Africa does not excuse focusing questions on African American employees or those with family ties to West Africa.
2. Can employers send employees home if they display Ebola-like symptoms following possible exposure to the virus?
That depends on the type of workplace. Today the CDC has issued guidelines specifically directed to healthcare and certain non-healthcare workers, including those in the airline, humanitarian aid, laboratory, funeral and mortuary, and college and university industries.
Healthcare, airline, humanitarian aid, laboratory, funeral and mortuary, college and university industries
In general, in workplaces identified by the CDC, symptomatic employees are those who develop sudden onset of fever, fatigue, intense weakness or muscle pains, vomiting, diarrhea or any signs of hemorrhage after an unprotected exposure. In such cases, the employees should (1) not report to work or should immediately stop working; (2) notify their supervisor; (3) seek prompt medical evaluation and testing; (4) notify local and state health departments; and (5) comply with work exclusion until they are deemed no longer infectious to others.
Asymptomatic employees with unprotected exposure to Ebola should receive medical evaluation and follow-up care, including fever monitoring, twice daily for 21 days after the last known exposure.
Workplaces not identified by CDC
For workplaces falling outside of the specific CDC guidance, the EEOC’s ADA guidance on the 2009 pandemic influenza informs Ebola planning. Under the guidance, symptomatic employees exposed to the virus during an outbreak should leave the workplace. If the illness is serious enough to pose a direct threat, the action would be permitted under the ADA
3. Are employers obligated to maintain confidentiality on employees’ medical condition?
Yes. Employers should keep employees’ medical information confidential and maintain it on separate forms and in separate medical files. If employees voluntarily disclose (without a disability-related inquiry) that they have a specific medical condition or disability that puts them at increased risk of Ebola complications, employers must keep this information confidential.
4. What are some reasonable workplace accommodations to an Ebola outbreak?
Telework and leave are reasonable accommodations that can effectively control the spread of infection. Employer should engage in the interactive process and ask employees to describe the type of accommodation that would be needed, such as telework, family and medical leave, disability or sick leave.
5. During an outbreak, can employers require employees to adopt infection-control practices at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA. During an outbreak, employers may require employees to wear personal protective equipment. However, where employees with a disability need a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these absent undue hardship.
6. Can employers require a doctor’s note certifying fitness for duty following an Ebola outbreak?
Yes. Following a serious Ebola outbreak, requiring a doctor’s note certifying fitness for duty is permitted under the ADA.