As the number of Ebola cases hits the 10,000 mark, employers the world over are looking to put in place plans to prepare in the unlikely event that an employee becomes exposed to or ill with the virus. Is your business prepared?
DLA Piper's global team can help advise employers, wherever they are based, on the employment legal issues involved. We are currently advising clients on a range of issues related to the Ebola outbreak and have extensive experience of advising on similar outbreaks such as SARS. Some of the key issues to consider are set out below.
How can you best protect the health and safety of your employees?
The World Health Organisation says that the risk of a person becoming infected with the Ebola virus during a visit to any of the affected areas is extremely low; nonetheless, employers have an obligation to ensure a safe workplace which should include taking steps to guard against the risk of infectious diseases in the workplace. An effective strategy to protect employees and to eliminate any unnecessary panic should include:
- Keeping abreast of government advice and communicating this to employees
- Updating contact details of employees and circulating emergency contact details for key employees
- Carrying out a risk assessment, ensuring good hygiene practices in the workplace and training employees on the key facts and risks
- Updating any policies or procedures (eg sickness absence, dependent care leave, flexible/home working) which may be affected by an outbreak of Ebola
- Displaying signs of symptoms and steps employees should take if they suspect they may have come into contact with someone with Ebola including details of the nearest medical center equipped to deal with Ebola outbreaks, and
- Asking employees to report to HR if they themselves have been to a high risk destination or if they have been in contact with someone else who has been to a high risk destination regardless of whether or not they are exhibiting symptoms.
Can you require employees to stay at home if there is any risk that they may have come into contact with Ebola?
Employers may wish to require employees who have travelled to or been in close contact with someone from a high risk area to be placed on enforced leave or require them to work from home until it is clear they are not infected.
Employers should carefully review internal policies and contracts of employment to check whether there are any provisions enabling them to do this lawfully, and, if there are no such provisions (and depending on the applicable laws in the relevant jurisdiction), weigh up the risks of the 'quarantined' employee bringing a claim versus their general duty of care towards all employees. An asymptomatic US nurse, who was confined to an isolation tent on returning home from treating Ebola patients in Sierra Leone, has won a court order blocking her quarantine, despite the fact that it complied with current Centers for Disease Control and Prevention guidelines in the US. The issue of quarantine is likely to remain a live and delicate one.
Any period of time for which an employee is required to remain away from the workplace should be reasonable, which in general will be no longer than the time taken to establish that the virus has not been communicated. Unless the local regime or contract provides otherwise, employees should, generally, be paid as normal, at least until such time as the situation changes and they are either declared unfit for work - so that any sick leave entitlements kick in - or are able to return. Employers should also take all necessary steps to ensure that employees are able to continue to work (if they are well enough to do so) to avoid employees suffering any prejudice as a result of being required to work from home.
Can an employer carry out medical screening if an employee has been to a high risk destination?
The right to screen employees, and/or require them to attend medical appointments, will depend on the local legal position and contractual rights, and here employers need to balance the obligation to provide a safe workplace against obligations of data privacy and confidentiality. Whether it is proportionate and reasonable to ask an employee to undergo a screening test and the potential options if the employee refuses will also depend in part on the medical advice received in the relevant jurisdiction regarding the necessary precautions, taking into account the level of potential exposure and risk. Discrimination risks could also arise if employers single out certain employees based solely on their nationality or racial or ethnic origin.
Information gathered about the health of an employee will be classed as sensitive data in some jurisdictions, requiring special handling, so employers should always take care to keep information relating to the health of employees confidential.
What can an employer do about employees who refuse to come into work or travel?
Employers need to balance the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorized absence. While employment laws vary from country to country, employers generally have a duty of care towards employees at work and on business travel - as well as to third parties visiting the employers premises - in addition to obligations under local health and safety laws. Employers worldwide are expected to take proportionate and sensible action to protect employees and third parties on their premises, and this will include cancelling business trips if government and insurance guidelines advise against travel to specific destinations. Failure to follow such advice could put your business at risk of negligence or health- and safety related claims should an employee become infected on such a trip and this could even invalidate your insurance policies.
While employers should be sympathetic towards employees who have genuine and reasonable fear that attendance at work or international travel could put them at risk, they should also be wary of employees taking advantage of the situation. Employers should ensure that their disciplinary and absence policies deal with any employees who are unreasonably refusing to attend work or travel for work through fear of contracting the virus.
How can a multinational employer deal with contingency planning on a global basis?
Ebola is an international concern and multinational employers should consider implementing advice and plans across their worldwide operations. The key issues to consider in respect of each jurisdiction will include:
- Ensuring that the employer has complied with its duty of care and obligations in respect of health and safety towards employees, contractors, clients and visitors
- Reasonably balancing the rights and obligations of employers and employees
- Providing employees with access to up to date information and support
- Putting in place appropriate medical arrangements
- Personal injury liability