We have been at ground zero here in Dallas the last few weeks as the Ebola scare began with Thomas Eric Duncan and spread to two Presbyterian nurses that treated him. (It was quite surreal to see a news helicopter hover over the home of one of the nurses’ which is only a few blocks from my house.) Thankfully, Nurse Nina Pham and Amber Vinson beat Ebola and we have no active cases (knock on wood) here in Dallas. Unfortunately there are ongoing cases in the US and the epidemic in Africa.
Ebola and other disesases present a number of issues for employers both in terms of protecting employees from the disease and protecting the privacy rights of the employee. The scary thing is how many people a single person can come in contact with both from day to day activities and if they travel. Luckily, we have not seen a child come down with a case and then potentially expose a school.
So to begin with, what does an employer need to do in terms of protecting its employees? What if an employee tests positive for Ebola? What if an employee travels on an airplane with someone who has Ebola? What can I tell my employees about employees who either have Ebola or were exposed? All of these things have happened here. The answers are not easy as we attempt to balance the priviacy rights of employees with the welfare rights of employees.
The first issue for any employer is what can it ask the employee about his or health condition? Generally, an employer cannot ask anything about an employee’s health condition unless it relates to the job and there is a business necessity or (here is the key one) the employee’s medical condition poses a direct threat to the health or safety of the employee or others. Otherwise, the employer risks an ADA claim.
Unfortunately, we have no guidance from the EEOC on Ebola yet but there was a Pandemic Preparedness article put together for the H1n1 Virus. The advice turns on whether a pandemic has been declared by the World Health Organization. With respect to the African ebola outbreak in 2014, a pandemic has not been declared. Instead the WHO has declared it to be a “Public Health Emergency of International Concern”.
As described in the guidelines, the employer is fairly limited in what it can do vis a vis an employee pre-pandemic. For example an employer cannot:
- Ask if the employee has a compromised immune system that would make the employee susceptible to influenza; and
- Rescind a job offer if the applicant has a medical condition that would make the applicant susceptible to influenza.
Once the pandemic is declared the employer has a few more options. For example:
- An employer may send home an employee if they display influenza-like symptoms.
- Ask an employee if they experiencing influenza-like symptoms.
- In some circumstances ask if an employee is returning from travel to locations where there is an outbreak; and
- Encourage telework and require infection control practices like handwashing.
There are a number of scenarios and questions contained in the article that would appear to relate to EBOLA as well. Obviously, this a developing topic and the employer has to balance the privacy/health of the employee with that of the employer – not easy! There is no one size fits all on this issue and I reccomend reaching out to a lawyer to consider before taking any action.
Today Texas announced its guidelines with respect to observing individuals with potential exposure. It remains to be seen how these new guidelines will play out in the workplace. Hopefully, we won’t find out in the near future.
