Executive Summary: With the diagnosis of the second Ebola case in the United States on October 12, 2014 – one in which a healthcare worker contracted the lethal disease while performing her job duties – U.S. employers are examining what necessary precautions should be taken to control and prevent the spread of the disease. Perhaps the most important step for employers right now is to become educated and stay informed.
Ebola Virus Disease – Symptoms and Transmission
Ebola, previously known as Ebola hemorrhagic fever, is a rare and deadly disease caused by infection with one of the Ebola virus strains.
Symptoms of Ebola include fever greater than 101.5° F, severe headache, weakness, muscle aches, diarrhea, vomiting, abdominal pain, and easy bruising and bleeding. Symptoms can appear anywhere from two to 21 days after exposure, and a person is infectious only after symptoms begin.
Ebola is not infectious like influenza or SARS – that is, it is not an airborne virus. To contract the virus, an individual must come in contact with body fluids (vomit, diarrhea, mucus, blood, sweat, saliva, tears, and urine) and then rub his or her eyes, mouth, or a break in skin to become infected. Ebola can survive on dry surfaces such as countertops and door knobs for several hours, but can be killed with household bleach.
For more information, see the Centers for Disease Control and Prevention (CDC) website: http://www.cdc.gov/vhf/ebola/index.html.
Currently, there is a very low risk that workers in the U.S. will encounter the Ebola virus or individuals infected with the virus.
The Occupational Safety & Health Administration, however, has identified certain industries in which workers are at a greater risk for infection:
- Healthcare workers;
- Airline and other travel industry personnel;
- Mortuary and death care workers;
- Laboratory workers;
- Border, customs and quarantine workers;
- Emergency responders; and
- Workers in critical infrastructure/key resource sectors.
Employers in these industries will need to immediately review their infectious disease protocols and ensure that such protocols are up to date and are disseminated to all workers.
The Occupational Safety and Health Administration has published extensive guidelines addressing each of these at-risk industries, which can be found at: https://www.osha.gov/SLTC/ebola/control_prevention.html.
For all other workplaces, the main concern would be individuals returning from international travel to affected countries. Employers may want to consider limiting travel to the affected areas, or at least ensuring that business travelers are fully educated on methods of transmission, prevention, and symptoms of Ebola.
Rights and Responsibilities of Workers and Employers
First and foremost, employers and workers must communicate and cooperate with health organizations in the prevention and control of Ebola. Employers should be aware that such communications could implicate a host of workplace legal issues, from OSHA and other workplace safety laws to medical examinations under the Americans with Disabilities Act (ADA), to protected concerted activity issues under the National Labor Relations Act (NLRA).
Under the ADA, employers can require current employees to undergo medical examinations when such examinations are job-related and consistent with a business necessity. Because the risk of transmission of Ebola, even among international travelers, is still so low, requiring a medical examination for all business travelers returning from international travels likely would not be considered a necessity.
If a group of employees refuses to work because of concerns about Ebola, the refusal may be considered protected concerted activity under Section 7 of the NLRA. In the event of such activity, discipline or termination of the employees could lead to an unfair labor practice charge alleging that the termination or discipline violated the employees' Section 7 rights. We recommend that you discuss these situations with your counsel before any adverse actions are taken.
Going forward, employers should continue to monitor government communications, including the CDC website, regarding outbreaks, and should immediately contact the local public health department regarding any suspected exposure to Ebola. Additionally, employers should consider seeking guidance from counsel regarding protection of workers, both with respect to the privacy of an infected individual and the safety of the remaining workforce.