The potential outbreak of Ebola around the globe is raising challenging issues for employers, particularly those that have multiple locations, provide a variety of services, and employ a global workforce that may travel routinely for business. Personal travel also inevitably will be on the rise now that holiday season is around the corner.
For employers who have lived through prior pandemics, it is time to revisit preparedness and re-evaluate for changes in locations of workforces and in the laws; for those who are new to the scene, understanding the company's workforce, legal obligations and being prepared is key.
With that in mind, the following are practical tips to help employers prepare for the worst.
Tips for US Employers
So far the number of active-case diagnoses in the US has been comparatively low. Thus, the current overriding goal for non-healthcare employers in the US is to avoid over-reacting to employees who may be inclined to over-react themselves. Legitimate legal issues do exist, however.
In the event of an actual outbreak or potential exposure, OSHA, the ADA and statutory medical leave laws such as the FMLA and state-analogs (e.g., CFRA in California) all come into play. So do worker's compensation laws. Below is general advice for US employers to navigate these developing issues.
Keep Calm and Carry . . . Hand Sanitizer
If you are receiving employee inquiries regarding Ebola, help educate and inform. A short, accessible memo to employees outlining the following is an easy way to signal empathy and preparedness.
- Clarify for employees where your workplace is on the risk spectrum. Most US employers will be on the lower-exposure end unless they provide direct patient care, handle clinical or human materials, or have an employee who has been exposed to someone actively manifesting the symptoms of Ebola.
- Reference and / or circulate a copy of the Centers for Disease Control's (CDC) guidance on preventing Ebola.
- Provide extra supplies and ready access to soap, tissues, hand sanitizers and hygiene kits in the workplace. Remind employees that these resources exist.
- Employers are required by OSHA to provide a “safe and healthy workplace.” To satisfy this mandate, require employees to self-report to HR if they have been exposed to a person with Ebola.
- Actions that could be construed as discriminatory or retaliatory on the basis of a medical condition or disability must be avoided.
Remember: The ADA prohibits discrimination or retaliation on the basis of “perceived” disability. It is not unreasonable to foresee someone who has been tested for (but not diagnosed with) Ebola to claim to fit within this category. Likewise, a worker who recently has traveled abroad and returned with a case of the sniffles (or is not exhibiting any symptoms of illness at all) may claim discrimination on the basis of "perceived" disability if ostracized from the workplace or otherwise treated differently upon her return.
However, employees whose disability poses a health or safety risk to others do not qualify for protection under the ADA. Employers therefore will be able to require employees diagnosed with Ebola not to report to work or (if cleared by their healthcare provider) to work from home.
- Remind employees to please stay home if they are sick and to utilize available sick leave or other paid time off to care for themselves or sick family members. Affirmatively state that they will not be harassed or retaliated against for taking such time off. Make sure your managers - through whom direct liability for harassment can attach - tow this line (see item 3, below).
- If one does not already exist, prepare a Communicable Disease Policy advising employees to report exposure to communicable diseases both in and out of the workplace, and have a plan of action in such situations for both facilities maintenance and de-contamination if necessary, as well as remote IT access.
- Guard the confidentiality of employee medical information and distribute such information strictly on a need-to-know basis to public health officials, healthcare providers or company personnel as appropriate.
Address Business Travel Concerns Head-On
Currently, the CDC has not issued any advisories for domestic travel within the US, including into or out of the Dallas-metropolitan area (where to date three cases of Ebola have been diagnosed) or New York City (where a physician who provided medical aid in Africa has been diagnosed). New York's JFK airport has been designated as one of five airports where flights from Liberia, Sierra Leone or Guinea - currently the hardest hit areas of the pandemic - are being routed for enhanced screening of arriving passengers. The other airports are Newark Liberty, Washington Dulles, Chicago O'Hare and Hartsfield-Jackson in Atlanta.
Despite the relatively small scope of the outbreak in the US, workers are on edge. Consider the following practical advice as to business travel.
- If you have employees or a worksite in Dallas or New York City (or in any other US location where a future outbreak might occur), explain what is going on there. Specifically, if it's business as usual and people are reporting to work as normal, share this reassuring message.
- Recommend to employees that before they go on business or personal travel they check the current state of travel advisories from the CDC Travel Notices.
- Remind employees to check themselves for fever or other symptoms of infectious disease before returning to work from a trip.
- For employees who are traveling on business to an infected area in the US, they may be able to travel into a nearby non-international airport, which may lesson the potential for exposure. If a non-international airport is not readily accessible, employees nevertheless may be able to fly an airline that uses a different terminal than what other international airlines use at the destination hub.
- Consider temporarily agreeing to reimburse the reasonable cost of airfare even if not the most inexpensive airport, route, or airline available for the business trip if it has the potential to lessen exposure to infected areas. For example, during the SARS outbreak in 2003 many international travelers sought to avoid traveling through Hong Kong.
- Let employees know that if they become ill while traveling they immediately should contact a health care provider and may stay in their local hotel room and do not need to engage in public transportation nor report to the remote work location. Any absence from work or need to work from the hotel should be reported to the employee's manager or HR.
- It never hurts to state the obvious. Explain to employees that if they or any of their household members develop fever higher than 100.4 degrees, flu-like symptoms, or unexplained hemorrhaging (bleeding or bruising), particularly if after a business trip or coming into contact with someone who has traveled to Africa, they do not need to report to work. They instead should immediately contact appropriate health care providers about medical treatment and inform their manager or HR about their absence and / or the need to work from home as soon as possible.
Get Managers Onboard
Your managers represent your first-line communication and response team. Give them the information and organizing principles they need to effectively lead in this type of situation.
- Remind managers of the company's "zero-tolerance" policy on harassment and retaliation against employees who are absent due to their own serious health condition or disability or to care for an ill or disabled family member. Remember, supervisors can expose employers to direct liability for harassment.
- Help managers develop a plan of action in the event their business unit is affected by a pandemic - be it Ebola, a pernicious strain of influenza, or some other pandemic.
- Suggest the following to managers:
- Evaluate who are your ‘business essential’ personnel – employees whose absence could significantly impact your ability to continue to provide services. Do you have someone that is cross-trained and could be a backup? Have you documented how they do their work so that someone else could fill in if they are not available?
- Evaluate which employees have laptops and secure remote access credentials, including encryption tools, that enable them to work effectively from home. If the employee does not have the requisite technology or clearances, how would their work safely get done if they need to telecommute?
- Identify any critical inputs that would affect your ability to continue to provide services – supplies, vendor services, etc. Discuss with your key vendors their plans to continue to provide services should a pandemic spread. This especially is important for supply chains located in or adjacent to infected areas.
- Review all vendor and client contracts for which you are responsible to determine whether they impose any reporting obligations on the company with respect to communicable diseases. Some third parties do in fact require companies to report if certain infectious diseases have entered their workforce.
If one of your US workers becomes infected with Ebola, keep in mind the following.
- Employers should take care to treat any employee diagnosed with Ebola consistent with its HR policies regarding leave taken under the FMLA or state equivalent or ADA. All qualifying employees with a serious health condition should be permitted to take family-medical leave. Ditto if they have a family member that gets sick (although this raises concern regarding contagions). Similarly, all qualifying employees with a disabling medical condition that prevents them from being able to perform the essential functions of their job must be engaged in an interactive process and reasonably accommodated to comply with the ADA.
- Employees infected at the workplace may be covered by workers’ compensation which, if applicable, generally serves as an employee’s exclusive remedy and should bar any other claims by employees related to their diagnosis. (Texas - which does not require employers to subscribe to workers' compensation - is an exception and there may be some employers in Texas who have elected to be non-subscribers.)
Employers thus are advised to check coverage options with their workers' compensation carriers so they can be prepared to counsel employees as needed. Of course, employees receiving or requesting workers’ comp benefits must not be subject to adverse employment action that could be construed as discrimination or retaliation based on their applying for or receiving such benefits. And if an outbreak of Ebola (or any pandemic) were to result in the workplace and an uptick in workers' comp claims filed, the employer's carrier could increase workers’ comp premiums – so be prepared for that.
- Employers also are advised to check their group health policies to determine the scope of coverage. At least one large US business insurer has begin excluding coverage for Ebola-related claims. If your company is affected by such exclusions and employees will lack coverage if infected, employee business travel may need temporarily to be re-thought.
- Healthcare workers assigned to care for Ebola patients should be paid for all "donning and doffing" time it takes them to put on and take off the requisite protective gear. Not only is this important from a compliance perspective, but wage and hour claims fall outside of the workers' compensation scheme and therefore represent a separate basis for legal risk.
Taking the Tips Global
In a pandemic situation, multi-national employers also want to know what they can do to best protect their employees and business outside of the US. Beyond implementing seemingly straightforward tips, some frequently asked questions arise, including:
- What can an employer ask employees in terms of prior travel or association with other individuals who may have traveled to, or been exposed to, outbreak zones?
- Can an employer force employees to stay home and/or shut down worksites entirely?
- How should an employer respond to employees fearful of coming into work or sitting near a potentially ill worker?
- What are an employer’s obligations to notify government authorities of a sick employee?
- Can an employer implement monitoring practices?
The answers may surprise you.
Outside of the US, privacy laws come into play immediately. For instance, in the EU, such inquiries are limited by the EU Data Protection Directive, as implemented by national laws, as well as by the right to privacy under the European Convention of Human Rights.
In France, employers cannot make inquiries into an employee’s travels or contact with persons who may have traveled through outbreak zones but, rather, the onus is on the employee to monitor his or her own heath and seek medical services as needed. The employer can, however, ask that a labor doctor examine the employee. Similarly, in the Netherlands, the employer cannot make such inquiries, but can ask the company doctor to examine the employee provided that there is a legitimate purpose for the related privacy intrusion, a necessity to use the examination as a means to ensure such legitimate purpose (i.e. there are no less intrusive, more appropriate, means) and employees are informed up front that they may be asked to undergo the company doctor’s examination in case of travel and/or association with other individuals who may have traveled to or been exposed to outbreak zones. In Germany, if an employer has a substantial reason for the inquiry, they may ask about travel and personal contacts.
In APAC, many jurisdictions have common law confidentiality and privacy laws, and others have implemented data privacy laws since the last major viral outbreak. By contrast, data privacy laws are not well developed in China and the China government imposes general obligations on any employers or individuals to cooperate with the health authority for the prevention of communicable diseases, such as providing personal information. Therefore, it would be lawful for China employers to ask employees about prior travel to or association with other individuals who may have traveled to or been exposed to outbreak zones.
In any case, employers still are generally able to ask employees about their travels or contact with others if there is a real risk that the virus may spread within the workplace that outweighs privacy interests. There nevertheless are jurisdictions where even though an employer may be able to lawfully inquire into employee travels or contact with others, the employee will not be obligated to respond in the absence of government regulations to the contrary.
2. Can an employer force employees to stay home and/or shut down worksites entirely?
Wage and hour obligations are triggered, even in a pandemic. In the EU, if an employer forces an employee to stay home because of concern that they may be infected, the employer will need to provide full pay and generally cannot force the employee to use sick or vacation time.
In the UK, it is possible, however, for the employee to go unpaid if there is an agreement in writing between the employee and employer allowing for unpaid leave due to an actual or perceived health risk (although this would be unusual in the UK). Employers in the UK have a duty to provide a safe place of work for all of its employees. In these circumstances, an employer would be justified in seeking medical advice, and if recommended by the adviser, asking the employee to work from home for a period of time. Once the individual is given the medical all clear, the employee should then be allowed to return to work. If a labor doctor in France diagnoses the employee with the infection, then the employee may be sent home (or to the hospital) and will receive pay pursuant to the applicable national collective bargaining agreement.
In APAC, an employer generally may send an employee home on a paid leave, and, in fact, may be required to do so. In China, employers may be required to shut down worksites or send a potentially infected employee home with full pay. Employers in other APAC countries can provide in employment agreements or company policies or work rules that such leaves will be unpaid, or vacation applied.
3. How should an employer respond to employees who are fearful of coming into work or sitting near a potentially ill worker?
Across the world, the answer is the same: educate employees so as to pre-empt irrational fear and panic. That said, if an employee truly is fearful of coming in to work, the employer may consider telecommuting options. An employee also may take vacation, though the employer is not obligated to allow them to do so. And in France, an employee who fears he or she is endangered or at risk has the legal right to stop working.
4. What are an employer's obligations to notify government authorities of a sick employee?
Here, the balance between privacy and public health is achieved differently in different countries. Again, primarily due to data privacy laws, employers in most of the EU generally may not notify health authorities that an employee has been infected. A company doctor often has the obligation to inform the authorities. In the UK, however, an employer may in fact be obligated to notify the health authorities if Ebola is added to the list of occupational diseases requiring employer notification. (To our knowledge, Ebola has not been added to the list as of this publication date). The requirements to inform the government of any infected employees or potentially infected employees are much more direct in APAC. Notification is required in many countries, including China where employers or individuals in China may be found civilly liable for failure to notify health authorities resulting in spread of communicable disease and damages to others.
5. Can an employer implement monitoring practices?
Employer monitoring of employee health, beyond the framework of company or labor doctors, is generally prohibited in EU jurisdictions. In some jurisdictions, however, such as the UK, a weighing and balancing test of privacy rights against the risk of widespread infection may end up in favor of reasonable monitoring or testing depending on the specific facts. In Germany and the Netherlands, testing via the labor doctor may be allowed if there is a sufficient justification (i.e., immediate, objective and substantial risk) for concern, that would make for a legitimate purpose for the related privacy intrusion and a necessity to use the examination as a means to ensure such legitimate purpose (i.e. there are no less intrusive, more appropriate, means).
In APAC, where heat sensors are utilized in some airports, an employer’s ability to monitor employee health is much greater. Although providing adequate notice and information about the monitoring is recommended, in some jurisdictions, employees who refuse reasonable testing can be lawfully disciplined. In China, employees are required to cooperate with health authorities in preventing communicable diseases, which is understood to mean that they should cooperate with employers who implement health monitoring practices.
The key message for any employer is to be prepared. Utilize public health and government resources for information, contact your health and safety offices and vendors and run preparedness and procedures by legal counsel to ensure compliance with the law while protecting the company’s workforces, wherever they may be.