Top 10 Considerations for Employers
Addressing Ebola and Other Dangerous
Contagious Diseases in the Workplace
The Ebola virus is the current example of workplace issues facing
employers when a potentially deadly infectious disease spreads in
Until July 2014, the Ebola virus contained in the West African countries of Guinea,
Liberia and Sierra Leone presented no real risk to Americans on American
soil. Since that time, just over a dozen patients have been treated for and/or
diagnosed with the Ebola virus on U.S. soil. Employers continue to face very real
legal implications as a result of employees traveling, including to West African
nations, and the same principles apply to management of workplace concerns
when employees risk exposure to other community-based dangerous infectious
For more information about
Wilson Elser’s Employment &
Labor practice, visit our website.
Lisa Handler Ackerman
Of Counsel, Chicago
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The Centers for Disease Control (CDC) has published
the Top 10 Things You REALLY Need to Know About
nn Symptoms of Ebola appear anywhere from 2 to
21 days (with an average of 8 to 10 days) after
nn The Ebola virus is not airborne but rather spread
through direct contact with blood or bodily fluids
from a person sick with Ebola
nn A person infected with Ebola cannot spread it to
others until symptoms begin
nn A person traveling to countries where Ebola
outbreaks exist does not pose a danger to his coworkers,
friends and family upon returning home
as long as he does not have symptoms of the
In its advisory for humanitarian aid workers returning
home, the CDC advises persons exposed to the Ebola
virus to monitor their temperature twice daily for 21 days
and watch for other symptoms commonly associated
with Ebola. The CDC maintains that employees and
volunteers can continue their normal activities, including
work, during this 21-day period.
LEGAL IMPLICATIONS OF EBOLA IN THE WORKPLACE
For the purpose of this discussion, it is presumed
that the Ebola virus is a disability covered under the
Americans with Disabilities Act (ADA) and a serious
health condition under the Family and Medical Leave
Act (FMLA). The Equal Employment Opportunity
Commission (EEOC) has not issued guidance specific
to the Ebola virus and the CDC has not categorized the
Ebola virus as a pandemic. Yet, the EEOC Guidance
on “Pandemic Preparedness in the Workplace and the
Americans with Disabilities Act,” published in 2009 in
the face of the pandemic influenza, provides a practical
resource for employers addressing personnel issues
that arise if an employee is exposed to or is diagnosed
with the virus.
A common scenario that Wilson Elser’s Employment
& Labor practice clients have been posing goes
something like this:
An employee advised that he plans to travel
to a West African nation where there has been
an Ebola outbreak. How can we protect the
workplace from potential risks when the employee
returns to work?
The following are common questions our attorneys have
fielded, along with an explanation of the various legal
1. May an employer create a policy prohibiting
employees from traveling to West African
countries where the CDC has issued
nonessential-travel advisories, and terminate
an employee for violating this policy?
The short answers are “No” and “No.” An employer
puts itself at risk of a discrimination claim if it takes
an adverse employment action against an employee
for traveling to a specific region. A blanket policy can
give rise to a disparate-impact claim by an employee
alleging the policy adversely impacts persons of a
particular national origin or race.
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If an employer terminates an employee who traveled
to a West African country to care for a family member
who has Ebola, the employee may bring a disability
discrimination claim alleging that the employer
terminated him for his association with a person who
has a disability.
In addition, such a policy could violate the FMLA to the
extent an FMLA-covered employer denies an eligible
employee FMLA leave to travel to West Africa to care for
a spouse, child or parent afflicted with Ebola. If that same
employer terminated that employee upon his return to
work at the end of his FMLA leave, the employer would
also be looking at an FMLA retaliation claim.
2. May an employer ask an employee if he is
experiencing symptoms of Ebola or require an
employee to get tested for the Ebola virus?
The ADA prohibits employers from making disabilityrelated
inquiries or requiring medical examinations
of current employees unless they are job-related or
consistent with business necessity.
Generally, a disability-related inquiry or medical
examination of an employee is job-related and consistent
with business necessity when (1) an employee’s ability
to perform essential job functions will be impaired by a
medical condition or (2) an employer has a reasonable
belief, based on objective evidence, that an employee
poses a direct threat to the employer or others.
Depending on the particular circumstances presented,
questions about where an employee has traveled and
whether an employee has potentially been exposed
to the Ebola virus during his travels are generally not
However, an employer should ensure that questions
regarding employees’ travel plans are asked consistently
and without discrimination. For example, an employer
should not direct questions about travel plans only to
employees of African descent.
Absent a determination that an employee poses a
direct threat, an employer risks running afoul of the ADA
if it takes an employee’s temperature or requires an
employee to undergo diagnostic testing for Ebola.
If an employee reports that he is going to be absent
from work, the EEOC’s 2009 “Pandemic Influenza”
Guidance provides that an employer is permitted to ask
the reason for the absence. According to the EEOC,
asking an employee why he is absent from work is not
a disability-related inquiry, and an employer is always
entitled to know why an employee is absent from work.
Unless an employer determines that an employee is
a direct threat or will be absent for FMLA-qualifying
reasons, the employer should not press further for
details if an employee’s absence is for medical reasons.
In the event the CDC or state or local public health
agencies escalate the restrictions for those exposed to
Ebola, an ADA-covered employer may have sufficient
objective information to conclude that an employee
who traveled to an area where there is a large Ebola
outbreak or who was exposed to Ebola will pose a
direct threat to himself or others. In this circumstance,
ADA-covered employers may make disability-related
inquiries, including asking such an employee if he is
experiencing Ebola-like symptoms.
Where an employer believes that an employee poses
a direct threat because of his medical condition, the
employer may require that the employee undergo
medical testing (e.g., taking his body temperature)
and direct the employee to be examined by a health
care professional of its choice who has expertise in the
employee’s specific condition.
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3. May an employer prohibit an employee from
returning to work until 21 days has passed
since he was exposed to the virus, provided he
remains symptom free?
In its 2009 “Pandemic Influenza” Guidance, the EEOC
notes that if an individual with a disability poses a
direct threat despite a reasonable accommodation, the
employee is not protected by the nondiscrimination
provisions of the ADA.
The EEOC cautions that an “Assessment of whether
an employee poses a direct threat in the workplace
must be based on objective, factual information, not
on subjective perceptions … [or] irrational fears about
a specific disability or disabilities.” (Internal quotations
The EEOC also recognizes that “during a pandemic,
employers should rely on the latest CDC and state or
local public health assessments, [and even though
the] public health recommendations may change
during a crisis and vary between states, [the EEOC
instructs employers] to make their best efforts to obtain
public health advice that is contemporaneous and
appropriate for their location, and to make reasonable
assessments of conditions in their workplace based on
As explained above, the CDC’s most current guidance
provides that asymptomatic individuals can continue
to work even if they have been exposed to the Ebola
virus. Therefore, an employer would likely come under
fire for “regarding” an employee as disabled in violation
of the ADA if it prohibited an asymptomatic employee
from returning to work for 21 days following a trip to a
West African country affected by the Ebola outbreak or
exposure to the Ebola virus.
Also, an employer can be found in violation of the ADA if
it discriminates against an employee for his association
with a person who has a disability. Therefore, excluding
an asymptomatic employee from the workplace
following his exposure to Ebola through his contact with
an Ebola patient may give rise to an ADA-associated
Conversely, if an employee develops symptoms
consistent with the Ebola virus, an employer would
be justified in instructing the employee to work from
home or otherwise not come to work for up to 21 days
absent negative test results from a qualified medical
provider, based on the employer’s determination that
the employee poses a direct threat. Any employer’s
conduct in this regard is consistent with the current
Irrespective of the legal parameters, it is understood
that an employer may have compelling business
reasons, such as addressing concerns of its personnel,
clients or patients, as a result of which it prefers that an
employee take time off or work remotely following the
employee’s travel to an area with an Ebola outbreak
or exposure to the virus. Concerns such as these are
particularly common for employers in the health care
industry when employees have direct patient contact.
An employer must be careful in how it approaches
this discussion with the employee to avoid being seen
as violating the ADA by “regarding” an employee as
disabled. This becomes especially sensitive when an
employee does not want to work from home or has a
job where all or many of the essential duties cannot be
performed from home.
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4. Is an employer required to pay an employee
who has not been diagnosed with Ebola and
who is not coming to work for up to 21 days
(either by agreement or because it has been
determined that he poses a direct threat) and
who cannot perform all or most of his job duties
remotely because of the nature of his work?
Under the Fair Labor Standards Act (FLSA), an
employee who is paid on an hourly basis or is otherwise
not exempt from the FLSA’s minimum wage or overtimepay
requirements (i.e., is entitled to minimum wage and
overtime) is not entitled to compensation when he is not
performing compensable work. An employer, however,
should consult its own paid-time-off policies.
If an employee is exempt from the FLSA’s minimum
wage or overtime-pay requirements (i.e., the employee
is not entitled to minimum wage or overtime), the
employer jeopardizes the exempt status if it deducts
wages for a reason not permitted by the Department
of Labor. If an employee loses his exempt status,
the employee may be entitled to minimum wage or
Three permissible deductions an employer could take
from an exempt employee’s wages without jeopardizing
the employee’s exempt status are (1) if the employee
is absent from work for one or more full days for
personal reasons other than sickness or disability, (2)
for absences of one or more full days due to sickness
or disability if the deduction is made in accordance
with a bona fide plan, policy or practice or providing
compensation for salary lost due to illness, and (3) if the
employee is absent for a full workweek.
Legal requirements aside, paying an employee his
regular wages (at least until and unless he tests positive
for the Ebola virus) may provide other benefits to an
employer, such as limiting the risk that Ebola will spread
in its workplace, reducing rumors in the workplace, and
improving morale and public relations. While an employer
may think an employee has “agreed” not to come to work
for a period of time, the employee may be harboring
negative feelings associated with this arrangement.
If that situation arises, having continued to pay an
employee his salary may reduce the chance he will bring
a claim, or at the very least reduce the damages to which
he may be entitled if he does bring one.
5. Does an employer have to pay an employee
who is absent from work after testing positive
The employer should generally treat such employees
the same as it does others who are absent for medical
reasons. An employee diagnosed with Ebola may
qualify for short-term disability benefits. Assuming the
employee has used all accrued paid-time-off benefits,
an employer should be mindful of the implications of
an otherwise well-intended practice, such as paying an
employee for work missed following an Ebola diagnosis.
For example, an employer that does not pay female
employees for pregnancy-related disabilities opens itself
up to liability under the Pregnancy Discrimination Act
(PDA) if it provides paid leave for employees with other
temporary disabilities such as Ebola.
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6. What job protection exists for an employee
who is diagnosed with Ebola or has a family
member with Ebola?
If an employer is covered under the FMLA and the
employee is eligible for FMLA benefits, then the
employee may be afforded up to 12 weeks of unpaid,
job-protected leave for his own serious health condition.
The FMLA would also provide the same benefit to an
employee who needs to miss work to care for a spouse,
parent or child with a serious health condition such as
If an employee has not recovered well enough from
his own Ebola diagnosis to return to work full-time
at the end of the 12-week FMLA leave, his employer
should consider whether he is entitled to a reasonable
accommodation (i.e., additional unpaid leave, a work
from home arrangement or reduced schedule) under
the ADA or if doing so would impose an undue burden
on the employer.
Also, an employer should ensure that it treats such an
employee consistently with the way it treats similarly
situated, non-disabled employees who are permitted to
work from home or take unpaid leaves from work.
As mentioned above, an employer may be subject to
liability under the ADA for discriminating against an
employee who has an association with a person who
has a disability. Therefore, if an employee is unable
to return to work full-time at the end of his 12-week
FMLA caretaker leave, an employer needs to consider if
providing that employee additional time off or permitting
him to work from home is consistent with how it treats
other employees to avoid an ADA-associated claim.
7. May an employer require an employee who has
been away from work for the 21-day incubation
period or to recover from an Ebola diagnosis to
obtain medical authorization before returning to
In its 2009 “Pandemic Influenza” Guidance, the EEOC
advised that an ADA-covered employer is permitted
to require an employee returning to work during a
pandemic to provide a doctor’s note certifying his fitness
to return to work because such inquiry would not be
disability-related, or would be justified under the ADA if
the pandemic influenza were truly severe.
In the case of an employee returning to work following
an Ebola diagnosis or 21-day incubation period
following Ebola exposure, an employer would likely be
justified under the direct-threat defense to require an
employee to obtain a medical authorization to return to
work. Any such inquiries, however, must be limited to
what information is needed to make an assessment of
an employee’s ability to return to work.
When an employee is returning to work at the expiration
of his 12-week FMLA leave upon recovery from the
virus, the FMLA permits employers to obtain a fitnessfor-duty
certification as a condition of returning to work.
The employee should be advised of this requirement at
the outset of his FMLA leave.
8. What rights exist for employees who express
concern about exposure to Ebola in the
Notwithstanding an employer’s leave of absence policy
or paid-time-off benefits accrued by an employee,
employees who are afraid to come to work out of
concern that they will contract Ebola are not entitled to
FMLA leave or any sort of accommodation (e.g., work
from home) under the ADA.
Union and non-union employees who refuse to work
because of safety concerns in the workplace could be
deemed to be engaging in concerted activity protected
under the National Labor Relations Act (NLRA) so
long as they have a “good faith” belief that their health
and safety were at risk – even if they are mistaken.
The NLRA prohibits employers from retaliating against
employees who engage in protected concerted activity.
Under the Occupational Safety and Health Act of 1970
(OSHA), employees can refuse to perform work if (1)
where possible, they asked the employer to eliminate
the danger and the employer failed to do so; (2) they
refused to work in “good faith,” meaning that they
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genuinely believed that an imminent danger existed;
(3) a reasonable person would agree that there is a
real danger of death or serious injury; and (4) there is
not enough time due to the urgency of the hazard to
get it corrected through regular enforcement channels,
such as requesting an OSHA inspection. An employer
cannot retaliate against an employee for expressing a
safety concern. However, the employer may not need
to pay such employees, and further, it is unclear at this
time whether fear of Ebola exposure would actually be
reasonable in light of the current CDC guidance.
9. What liability may an employer face if an
employee or third party becomes infected with
the Ebola virus at its workplace?
An employer’s concern that it not open itself up to
liability for violating the ADA by asking an employee
disability-related questions, or requiring medical testing
in the absence of a direct threat, or prohibiting an
asymptomatic employee from coming to work based on
fear following his exposure to the Ebola virus must be
balanced with the risks associated with the spread of
the Ebola virus in its workplace.
If the Ebola virus is spread in the workplace, employees
who claim to have become infected in the course of their
employment may file workers’ compensation claims.
Under OSHA, an employer has a legal obligation to
provide safe and healthy working conditions, which include
protecting employees against “recognized hazards” to
safety or health that may cause injury or death.
OSHA has issued Interim General Guidance for
Workers, which sets forth its requirements and
recommendations for protecting workers whose
activities are conducted in an environment that is
known to be or is reasonably susceptible to becoming
contaminated with Ebola. These include health
care workers; airline and travel industry personnel;
mortuary and death care workers; laboratory workers;
border, customs and quarantine workers; emergency
responders; and workers in critical care sectors.
OSHA’s “Interim Guidance” refers employers to its
regulations governing the Blood-borne Pathogens
Standard for any occupational exposure to blood or
other potentially infectious material, and its regulations
governing the Personal Protective Equipment Standard,
the Respiratory Protection Standard and the General
Duty Clause of OSHA for other occupational exposures.
An employer may also face civil claims such as
professional liability or premises liability claims alleging
that an employer was reckless or negligent in failing
to prevent the spread of Ebola to patients or business
invitees in its workplace.
10. What may an employer disclose about issues
surrounding an employee’s health condition?
Once an employer receives medical information
about an employee, it must ensure that it keeps that
information confidential. An employer may acquire
confidential medical information about an employee
(1) in response to the employer’s disability-related
questions or directed medical examination based on
the reasonable belief that the employee poses a direct
threat, (2) during the course of the interactive process
when an employee has requested a reasonable
National Practice Chair
Wilson Elser, a full-service and leading defense litigation law firm (www.wilsonelser.com), serves its clients with nearly 800 attorneys in 26 offices in
the United States and one in London, and through a network of affiliates in key regions globally. Founded in 1978, it ranks among the top 200 law firms
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serves a growing, loyal base of clients with innovative thinking and an in-depth understanding of their respective businesses.
This communication is for general guidance only and does not contain definitive legal advice.
© 2015 Wilson Elser. All rights reserved.
Anthony P. Strasius
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accommodation, (3) when an employee has exercised
his rights under the FMLA or (4) when an employee
voluntarily discloses such information.
The ADA permits an employer to disclose confidential
medical information about an employee only to
supervisors and managers if it relates to (1) necessary
restrictions on the work or duties of the employee and
necessary accommodations, (2) first aid and safety
personnel if an employee’s disability might require
emergency treatment and (3) government officials
investigating compliance with the ADA, if requested.
The EEOC has instructed in its guidance that the
general personnel files of employees should not contain
any “medical-related material.” The EEOC differentiates
between notice that an employee has taken sick leave
or had a doctor’s appointment, which is not considered
to be covered medical information, and information
regarding an employee’s diagnosis or symptoms, which
is considered covered medical information.
The EEOC’s “Technical Assistance Manual on the
Employment Provisions of the ADA” (issued in January
1992) provides that an employer “should take steps
to guarantee the security of [an employee’s] medical
information,” including keeping the information “in a
medical file in a separate, locked cabinet, apart from the
location of the personnel files” and access should be
restricted to specific persons.
An employer’s obligations to maintain an employee’s
medical information do not end when an individual is no
longer an employee.
The regulations interpreting the FMLA also require that
records and documents relating to medical certifications
of employees or their family members for purposes of
the FMLA shall be maintained as confidential medical
records kept separate from personnel files.
Infectious diseases will continue to pose challenges
to employers seeking to ensure a safe and productive
workplace, whether it is Ebola or the next virulent
“bug.” Wilson Elser’s national Employment & Labor
attorneys are available to help employers navigate the
various developing issues and laws implicated when an
employee has been exposed to the Ebola virus or other
communicable medical conditions.