Given the growing spread of the Ebola virus in several West African countries and the heightened media attention surrounding the limited cases treated in the U.S. to date, employers are increasingly focusing on how best to respond to the disease and related employee health concerns.
The majority of steps needed to prepare for this risk are understandably operational. Also, human resources issues such as how employers plan to address communications, screening, monitoring, travel, leave and other issues are extremely important. In making these plans, employers will confront various legal hurdles that should be considered. These include, among many others, the key requirements outlined below.
OSHA
The Occupational Safety and Health Act requires that employers provide a workplace free from recognized hazards that are likely to cause death or physical harm. The Act also prohibits discrimination against workers who assert rights under the Act or who participate in proceedings related to the Act.
At present, the Occupational Safety and Health Administration (OSHA) believes that U.S. workers have a very low risk of Ebola exposure. However, certain industries and workers have a higher risk (e.g., health care providers, airline workers, lab workers, emergency responders, and mortuary workers). Further, although the Act’s “general duties” requirement may provide legal cover under some circumstances for certain practices, such as mandatory testing, sanitary restrictions and required leave, determining when an outbreak becomes a “recognized hazard” that legally justifies employer action can be tricky.
Other OSHA standards that might also apply include:
- OSHA’s Bloodborne Pathogens standard, as Ebola is among the subset of contact-transmissible diseases to which the standard applies, given that the disease is transmitted through contact with blood or other potentially infectious materials.
- OSHA’s Respiratory Protection standard, which would apply to situations in which workers may be exposed to bioaerosols containing the Ebola virus.
- OSHA’s Personal Protective Equipment standard, which would apply, for example, to certain health care workers, cleaning crews and other employees who work with Ebola-infected patients or handle Ebola-infected property and equipment.
ADA
The Americans With Disabilities Act (ADA) generally prohibits discrimination against qualified individuals with disabilities. In addition, the ADA:
- Prohibits discrimination on the basis of “perceived disabilities” (e.g., failure to hire non-symptomatic individuals from certain regions because of an unconfirmed fear or belief that they may be infected).
- Contains strict confidentiality restrictions on the disclosure of employee medical information, with certain limited exceptions.
- Prohibits pre-employment medical inquiries prior to the extension of a conditional offer of employment.
- Limits medical inquiries and testing performed during employment to certain prescribed circumstances (e.g., such as when clearly “job related and consistent with business necessity” or when required in order to address a known, non-speculative “direct threat”).
At present, general U.S. or international travel in and of itself would not constitute a “business necessity” under the ADA that could justify medical questioning or testing. However, (a) travel to or from a key Ebola-affected region (e.g., Liberia, Sierra Leone, Guinea), or (b) exposure to a known Ebola carrier (e.g., an infected traveler) would likely give an employer grounds under the ADA to, at a minimum, question an impacted employee regarding the details of his or her travel, potential exposure risks, and symptomology during and after travel.
FMLA
The Family and Medical Leave Act (FMLA) allows certain qualifying employees of covered employers to take up to 12 weeks of unpaid leave within a 12-month period, with the right to be reinstated upon their return to work (subject to certain exceptions). Situations that would potentially qualify a covered employee to take FMLA leave include, among other things, the need to care for a spouse, child or parent who has a serious health condition or the employee’s own serious health condition.
Being infected with Ebola would undoubtedly qualify as a “serious health condition.” As such, employers would need to consider, among other things:
- The extent to which they would want to enforce and/or broaden current FMLA leave requirements (e.g., provide for extended, emergency unpaid leave).
- Whether to modify current policies to provide for paid leave in order to encourage infected employees to stay out of work until they are no longer contagious.
- Under what circumstances a company can mandate leave for infected or exposed employees who otherwise want to return to work, and how such leave interrelates with FMLA and other leave policies.
- Whether to require heightened, independent medical certifications before infected or exposed employees are allowed to return to work.
HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) includes various federal privacy protections for individually identifiable health information. Although medical information that an employer receives as an employer (e.g., via leave requests) is not subject to HIPAA, medical information obtained as a health plan sponsor is covered and generally cannot be disclosed without a release. HIPAA does, however, contain various other exceptions to its privacy rules, including:
- Disclosure to public health officials in certain circumstances.
- Disclosure to individuals exposed to a communicable disease or at risk of spreading such illnesses, to the extent allowed by law.
- Certain disclosures for law enforcement purposes.
NLRA
The National Labor Relations Act (NLRA) guarantees employees the right to organize and bargain collectively. The NLRA also protects employees from unfair labor practices, including interference with the right of employees to engage in protected concerted activity.
The modification of sick leave, attendance, severance pay and other policies to address a potential outbreak may trigger bargaining rights at unionized workplaces. In addition, unionized and non-unionized employees may attempt to claim that their refusal to work with certain co-workers or to report to work during a perceived or actual outbreak is “protected concerted activity.”
Where to Begin
Information regarding OSHA’s general guidelines on Ebola can be found here.
A copy of the Centers for Disease Control and Prevention resource “What You Need to Know About Ebola” can be found here.
Further, for assistance in developing or modifying your organization’s employee communications, monitoring procedures, leave policies and benefits to address the unique human resources issues raised by Ebola or the threat of communicable disease generally, please reach out to your McGuireWoods contact, the author or any other members of the McGuireWoods labor and employment group.