NEW ORLEANS — With recent concerns regarding the Ebola outbreak, how should employers respond when they learn that an employee is planning a trip to West Africa to visit family? What if other employees refuse to come to work because they fear that the returning employee may have been exposed to the Ebola virus? How can employers prepare in advance for such situations?
Keith M. Pyburn, Jr., regional managing partner of labor law firm Fisher & Phillips, says many employers are scrambling to answer these questions.
He recommends employers get out in front of these issues and reduce potential liability by taking some proactive steps:
Communicating with Employees and Customers:
To help reassure workers, companies should prepare managers to: (1) give employees and customers pertinent information from the CDC and other health organizations; (2) explain steps the company is taking to protect its employees, customers, and the general public; and (3) reaffirm that the company takes health and safety very seriously and will take appropriate, lawful action to protect them.
Asking Employees About Travel Plans:
If an employee travels to West Africa, or is otherwise potentially exposed to Ebola, employers can and should ask certain questions.
Taking An Employee’s Temperature:
Healthcare workers potentially exposed to Ebola have been taking their temperature twice daily to monitor for fever, which is typically the first symptom.
Quarantining Exposed Employees:
Realistically, an employer cannot “quarantine” an employee. But it could place an employee on leave of absence during the 21-day incubation period, to determine whether the employee is infected. This option presents potential liability under the ADA, however. The ADA not only prohibits employers from discriminating against employees who are disabled (being infected with Ebola would likely be considered a disability), it also prohibits discrimination against an employee “regarded” as disabled.
What If Other Employees Refuse To Work?
If other employees refuse to work because they are afraid of becoming infected with Ebola, their refusal may be a protected work refusal under OSHA’s whistleblower protections, or similar state laws. Additionally, if several employees refuse to work, essentially go on strike, this work refusal would likely be protected under the National Labor Relations Act.
The Ebola outbreak is an evolving situation and employers need to carefully consider their response in order to maintain workplace safety and to avoid potential liability under a variety of federal and state laws.
