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Ebola for Employers — Frequently Asked Questions October 16, 2014

Thomas Benjamin Huggett

1. How is Ebola transmitted?

A. According to the Centers for Disease Control (CDC), Ebola is not transmitted by

casual contact. Ebola is transmitted through direct contact with a sick person’s

bodily fluids, the most infectious being blood, feces and vomit.

Unlike a cold or the flu, Ebola cannot be spread until an infected person is sick

and showing signs and symptoms.

Transmission of Ebola from contact with objects and surfaces is only known to

occur with a significant amount of bodily fluids, which remain wet (drying out kills

the virus), and are then placed in the mouth, eyes, mucous membranes, or an

open cut.

2. What are the symptoms of Ebola?

A. Ebola symptoms: high fever, severe headache, muscle pain, vomiting, diarrhea,

stomach pain, or unexplained bleeding or bruising. These are symptoms

common to many illnesses and do not necessarily mean the average person has

Ebola. If a person has been exposed to someone with Ebola they should report

these symptoms to the public health department.

3. Is there a test for Ebola?

A. There is not a reliable blood test for Ebola prior to development of the illness and

its visible symptoms.

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4. Is there a preventative vaccination for the Ebola virus?

A. There is presently no vaccination for the Ebola virus.

5. Is travel to West Africa prohibited?

A. The CDC updated its travel health notices to include a Warning Level 3

categorization for Guinea, Liberia and Sierra Leone because of the

unprecedented outbreaks of Ebola in those countries. This warning level

recommends avoiding all non-essential travel to these countries. Essential travel

is defined as humanitarian aid work. All other travel is considered non-essential.

6. Can employers refuse to allow employees to travel?

A. No. Employers cannot prohibit otherwise lawful conduct when an employee is off

duty.

7. Can an employer require a medical examination for an employee who has

traveled to an area with an Ebola outbreak before they return to work?

A. Generally, no. Under the Americans with Disabilities Act (ADA), employers can

require a medical evaluation only if it is justified by business necessity. In this

context, the ADA permits an employer to request medical information or order a

medical examination when the employer has a reasonable belief, based on

objective evidence, that an employee will pose a “direct threat” because of a

medical condition. The Equal Employment Opportunity Commission's Pandemic

Guidance states that an employer must take direction from the CDC or state/local

public health authorities in determining whether an illness is a direct threat, and

cannot make that assessment “on subjective perceptions . . . [or] irrational fears.”

The ADA standard is probably not met in most workplaces at this point in time.

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Direct care healthcare employers may be able to meet this standard depending

on the nature of the travel and exposure during the travel. Review of the

infection control program in place for these employers should consider this

element.

The CDC has recommended that individuals who do not exhibit any symptoms

and who have had no known exposure self-monitor for symptoms for a 21-day

period after leaving an outbreak area. Employers may encourage employees to

engage in this monitoring on their own.

8. Can employers impose a 21-day quarantine for employees returning from

travel to West Africa so that they do not come into the workplace for that

period?

A. There is no direct legal prohibition on imposing a quarantine. This action does,

however, raise a number of potential legal concerns under medical privacy laws,

disability discrimination laws, state wage and hour laws, as well as potential race

and national origin discrimination claims. It must be noted in this regard that the

CDC has advised those traveling that when they return they can continue normal

activities, including going to work. If an employer is going to impose a quarantine

period, employers should ensure that no adverse employment action is taken.

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9. What should employers do with co-workers who are nervous because of

travel?

A. Employers should educate their employees on the methods of transmission of

Ebola, explain that transmission risk is very low, assure them that the situation is

being monitored, and emphasize good personal hygiene practices.

Employers are responsible for the conduct of their managers and employees and

must ensure they do not discriminate against employees who are African or who

have visited West Africa. Employers must also follow all medical privacy

considerations related to any sick or ill employee.

10. Does the Occupational Safety and Health Administration (OSHA) or its

state plan counterparts require employers to have an Ebola policy?

A. OSHA’s Bloodborne Pathogens (BBP) standard requires employers to have a

program, protections and training for employees who are occupationally exposed

to blood or specific bodily fluids. This standard extends to cleaning up blood in

the workplace. All employers with a BBP program should review their BBP

program for any issues arising specifically from Ebola that are not already

included in the program.

With respect to employees in California, the Division of Occupational Safety and

Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard has

provisions that require protection of employees from infectious diseases

transmitted by inhaling air that contains viruses (including Ebola), bacteria or

other disease-causing organisms. The ATD standard is limited to specific

healthcare providers but does provide a potential model for other locations.

For direct care healthcare employers, the federal Department of Health and

Human Services and CDC have issued a Health Care Facility Preparedness

Checklist for Ebola Virus Disease that should be followed.

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11. May an employee refuse to perform his or her job based on concerns about

Ebola?

A. Under the Occupational Safety and Health (OSH) Act, employees may refuse to

work only where there is an objectively “reasonable belief that there is imminent

death or serious injury.” Refusing to work without such an objective belief may

result in disciplinary action by the employer. Given the current isolated nature of

employees who come in contact with Ebola patients, this standard is unlikely to

be satisfied absent particular factual circumstances. However, given the level of

public interest and concern, extreme care should be taken to avoid adverse

employment actions at this time due to a refusal to work. Use of counseling,

education and other available managerial skills are appropriate to avoid

confrontations and legal challenges.

Littler Mendelson, P.C.’s Workplace Health and Safety Practice focuses on advising employers on a daily basis. If you have questions or need further information please contact: Thomas Benjamin “Ben” Huggett 267.402.3035 tbhuggett@littler.com This document is not a do-it-yourself guide to resolving employment disputes or handling employment litigation, nor is it a substitute for experienced legal counsel. This document does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related matter. Further, this document does not purport to provide medical advice or counsel.