The threat of the deadly Ebola Hemorrhagic Fever, or Ebola virus, has caught the attention of the Occupational Safety and Health Administration. In the wake of several national incidents, OSHA has released interim guidance tips for employers in an effort to protect employees from the deadly virus. While a majority of workers are unlikely to ever come in contact with the virus, those who are employed in the healthcare and airline industries, along with various humanitarian efforts, are presently at the greatest risk. Employers in these fields should be on the lookout for symptoms of Ebola, which include fever, vomiting, diarrhea, and, at advanced stages, bleeding. The virus, which can incubate for up to 21 days, is only contagious when the host is exhibiting symptoms.
OSHA reminds employers that adherence to the Personal Protective Equipment standard under 29 CFR 1910.132 and the Respiratory Protection standard under 29 CFR 1910.134 is important in protecting against Ebola, which is spread via infected bodily fluids. OSHA also warns that training under the Bloodborne Pathogens standard, 19 CFR 1910.1030, is necessary for employees in fields where exposure to blood and other bodily fluids is common. Proper hygiene, including hand washing and disposal of contaminated items, is also necessary. In this regard, OSHA has released a guideline on cleaning and decontamination of Ebola on surfaces. The guideline states that items or surfaces that may have come in contact with the virus should be immediately cleaned and disinfected, and the area itself should be isolated. Any contaminated items should be double bagged and placed in leak-proof containers. The contaminated area should be disinfected with bleach for at least thirty minutes in the event that commercial disinfectants are not available. During decontamination, workers should wear proper protective clothing, such as fluid-resistant gowns, goggles, facemasks, and double gloves. OSHA also advises that respiratory protection should be used to prevent the transmission of airborne fluids, or “bio-aerosols.” Adherence to the Hazard Communication standard, 19 CFR 1910.1200, is required during any cleanup.
The potential for workplace exposure to Ebola represents a two-fold threat to employers. First, the failure of an employer to ensure its employees are protected from exposure could run afoul of OSHA’s General Duty clause, which requires that an employer furnish a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Second, in decontaminating and containing the virus, an employer must also ensure that its employees avoid exposure to harmful chemicals or other cleaning agents. Given these potential OSHA violations, along with the deadly nature of the virus and the national stigma that could attach to any occurrence, employers would be wise to educate themselves on the threat.
Actions taken by employers in addressing the virus must also take into consideration other legal requirements, particularly the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.
Under the ADA, an employer cannot require an employee to undergo a medical exam, and cannot make disability-related inquiries “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” A medical examination or disability-related inquiry is permitted if, based on objective evidence, the employer has reasonable belief that “an employee’s ability to perform essential job functions” will be impaired or the employee poses a “direct threat” due to their condition. Under the ADA, a “direct threat” means a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” Given the deadly nature of the virus, combined with its national stigma, it is highly likely that an employee potentially suffering from Ebola could be considered a “direct threat” for ADA purposes. Therefore, an employer would be permitted to inquire as to an employee’s health, or even mandate a medical examination. Such a determination would have to be done on a case-by-case basis.
Furthermore, under Title VII of the Civil Rights Act, an employer cannot discriminate on the basis of race, color, or national origin. Ebola is experiencing an extensive outbreak in West Africa, with American occurrences of the virus tracing their origin back to this location. Given this, employers must make sure that any action they take to address the virus does not focus on employees of African or West African descent, and instead targets all employees equally.