What Should Employers Know About Ebola?

The first known case of Ebola was diagnosed in the United States last week.  Although officials estimate that the chances of an outbreak are very low, here’s some information for employers about the disease and its potential legal implications:

What is Ebola?  According to the World Health Organization, Ebola is a virus characterized as a hemorrhagic fever, and it is frequently fatal.  In previous outbreaks, the fatality rate has ranged from 25% to 90%, but the average fatality rate is approximately 50%.

Where Is the Ebola Outbreak?  The current outbreak of Ebola is primarily affecting the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria.  Liberia has the largest outbreak.  Senegal and the United States have each reported one case.

How Is Ebola Transmitted?  Ebola is typically not transmitted through casual contact or through the air.  Rather, human-to-human transmission of Ebola generally occurs via direct contact with an infected person’s blood (e.g., through broken skin or mucous membranes), secretions, organs, or other bodily fluids.  It can also be transmitted through surfaces and materials contaminated with these fluids.  People with Ebola are generally not contagious until they begin showing symptoms.  Overall, Ebola is less contagious than many other diseases.

What Are the Symptoms of Ebola?  The initial symptoms of Ebola are fever, fatigue, muscle pain, headache, and sore throat.  As the disease progresses, additional symptoms include vomiting, diarrhea, rashes, impaired kidney and liver function, and in some cases, internal and external bleeding.

What Are the FMLA Implications of Ebola?  Ebola likely qualifies as a serious health condition for purposes of the Family and Medical Leave Act.  Employees who are diagnosed with Ebola or who have covered family members diagnosed with Ebola may be eligible for FMLA leave.

What Are the ADA Implications of Ebola?  Given its severity, Ebola likely qualifies as a disability under the Americans with Disabilities Act.  The most likely accommodation that the ADA might require for Ebola is a leave of absence because an employee diagnosed with Ebola will likely be too impaired to perform his or her job functions without posing a direct threat to the safety of his or her self or others.

Can Employers Ask Employees About For Medical Information Relating to Ebola?  The same rules that relate to other illnesses or injuries under the ADA and FMLA will also apply to Ebola.  In general, this means that any medical inquiries must be job-related and consistent with business necessity, and that any medical information that is provided by an employee must be maintained as confidential.  See 42 U.S.C. § 12112(d)(4).

Do Employers Have a Duty To Protect Employees From Ebola?  Employers have a general duty to protect employees from recognized hazards in the workplace.  The Occupational Health and Safety Act require employers to provide a place of employment which is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654.  For the vast majority of U.S. employers, protecting employees from Ebola in the workplace will likely not be a concern, but it’s possible that it could affect certain types of employers.

What Steps Can An Employer Take to Help Protect Its Staff:  Right now, most employers likely do not need to take any precautions.  If the number of reported cases grows and an employer deems that its workforce is at risk, however, those employers may want to consider taking some or all of the following steps, depending on their risk profile:

  • Educate employees about how Ebola is spread and best practices to avoid transmission;
  • Encourage employees to self-report any potential symptoms and to request PTO or a leave of absence if symptoms develop;
  • Establish an emergency preparedness plan or emergency response team;
  • Establish a plan for notifying employees and continuing work functions if an outbreak occurs;
  • Establish a plan for transporting sick employees to the hospital and disposing or cleaning infected materials;
  • Establish an isolation room; or
  • If an infected individual is in the workplace, establish a plan for identifying those employees with whom the individual came into contact so that they can be monitored for symptoms.

What precautions are necessary, if any, will vary significantly depending on factors including the nature of the employer’s business, its workforce, and its geographic location.

Takeaway:  At this time, Ebola should not be a major concern for most employers in the U.S.  Employers with the greatest risk likely include health care employers and employers with employees who travel frequently in Western Africa.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on October 6, 2014, in Accommodations and Accessibility, Family and Medical Leave Act, Leaves of Absence, Public Interest and tagged . Bookmark the permalink. Leave a comment.

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