Public Health Emergencies and Employee Rights

The recent outbreak of the Ebola virus and the serious health threat it poses to has increased our awareness of the threats the virus poses. The only thing certain about disease epidemics or pandemics is that they are accompanied by fear and confusion. But whether the outbreak is influenza or something more exotic, the responsibilities of an employer can be tricky, both from a legal and public health point of view. While on the one hand it is incumbent on the company and its managers to protect employees from exposure to an infected co-worker, the patchwork of employment laws may preclude many actions that would otherwise seem sensible. By the same token, worker compensation law may require that an infectious disease be treated as an occupational hazard subject to compensation.

The following review of employment laws is provided to help sensitize management and avoid an inadvertent violation of those employment laws.

Americans with Disabilities Act (ADA) The ADA prohibits discrimination for persons with disabilities. Asking an employee questions about diseases or exposure to disease are disability related and the ADA requires a “direct threat” to the health of the employee or others before an employer can make a disability related job inquiry that is not job related or consistent with business necessity. A disability related inquiry or medical examination of an employee is job related and consistent with business necessity where an employer has a “reasonable belief” based on “objective evidence" that the employee’s ability to perform essential job functions will be impaired by a medical condition or that the employee poses a direct threat due to a medical condition. Thus, an employer cannot require an employee to undergo a medical examination based on a whim, irrational fear stereotype or generalization. Similarly, an employer may not require mandatory fever screenings in the workplace unless they are job related or justified by information suggesting an employee poses a direct threat. An employer may require that all employees report to work and does not have to make an accommodation, such as allowing work from home despite a generalized, unsubstantiated fear permeating some workplaces.

What can an employer do? Recent EEOC guidelines promulgated during the H1N1 flu epidemic allow an employer to ask an employee about their travel plans; ask an employee if they are experiencing symptoms (but must keep this information confidential); send an employee who is displaying symptoms home; and require employees to adopt infection control practices such as regular hand washing.

Family Medical Leave Act (FMLA) Potentially lethal diseases such as Ebola or SARS – with the proven capacity to infect large numbers of people – are highly likely to be classified as a “serious health condition” under the FMLA. An employee diagnosed with such a disease or who has to care for an immediate family member suffering from it would likely be entitled to 12 weeks of leave in a 12 month period. The employee must have worked at least 1,250 hours in the past year and the employer must have at least 50 employees in order for coverage to exist under the FMLA

Worker’ Compensation A worker who contracts an infectious disease through occupational exposure (i.e nurses, doctors or other healthcare workers) is considered to have an occupational diseases, and has the right to compensation, rehabilitation and curative services.

OSHA Under the Occupational Safety and Health Act of 1970 (OSHA), employers are required to provide a safe and healthy workplace. Employers are also required to notify the appropriate individuals of cases of occupational diseases. Employers are required to provide adequate clothing and protective equipment to the healthcare department or other staff caring for suspected or confirmed cases. Until an employer has made the workplace safe, it cannot require employees to return to a workstation where there is a continuing imminent threat and serious risk to life.

Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against an employee based on age, race, national origin, religion, sex or disability. Employers should be careful not to discriminate against employees based on their national origin, if the disease is related to a particular geographic location. For example, in the case of Ebola, care should be taken to ensure that there is no potential harassment of Africans, which could take the form of disparaging or demeaning or insulting jokes or slurs. Even intentional avoidance based on an irrational fear of contracting the disease from a person who has recently returned from Africa (or in the case of Bird Flu, Asia) may trigger a charge of discrimination.

Asking the right questions: When any disease outbreak threatens the workplace, an employer is best served by arming themselves with scientific medical knowledge specific to the condition. A few very basic questions can provide a practical antidote to misinformation spread in the media:

• How is it transmitted?
• What is the incubation period?
• What are the symptoms?
• Is the origin specific to a geographic location?

The Society for Human Resource Management advises establishing Social Distancing Guidelines that can be implemented in the case of a communicable disease outbreak.

For more information and to review the CDC’s latest guidance, please go to the CDC website.