Oct 17, 2014

Ebola Considerations for U.S. Employers

The Centers for Disease Control and Prevention (“CDC”) has called the 2014 Ebola outbreak “the largest in history.” Over the past days and weeks, the first cases of Ebola have been diagnosed in the United States, including one case of a man infected with the virus in Liberia and associated cases where healthcare workers treating the man became infected. While experts say it is unlikely that Ebola will become a major outbreak or health issue in the United States as it has in West Africa, employers may have concerns regarding how to address employees who have recently traveled outside of the United States or otherwise may have been potentially exposed to the Ebola virus.

General Information on Ebola

Typical signs and symptoms of Ebola include sudden onset of fever, intense weakness, muscle pain, headache and sore throat.  This is followed by vomiting, diarrhea, rash, impaired kidney and liver function and, in some cases, both internal and external bleeding. The incubation period, or the time interval from infection to onset of symptoms, is from two to 21 days. Patients only become contagious once they begin to show symptoms and are not contagious during the incubation period (note: an October 16 announcement by the CDC indicates that the definition of when a person is symptomatic is under review). According to the CDC, Ebola is only transmitted through direct contact with blood and other bodily fluids of an infected person. Ebola is not transmitted through the air. One of the first symptoms is a fever, and airports across the world (including in the U.S.) are screening international travelers for contagious diseases or symptoms of Ebola. Five main U.S. international airports (including Hartsfield-Jackson International Airport in Atlanta, Georgia) have begun conducting Ebola screenings for international travelers (specifically by taking passengers’ temperatures and requiring them to fill out a questionnaire). The U.S. Department of Transportation allows airlines to deny boarding to travelers with such symptoms.

The U.S. Department of State views the risk of travelers becoming infected with the Ebola virus during a visit to the affected areas and developing the disease after returning as extremely low, even if the visit included travel to the areas where primary Ebola cases have been reported. Therefore, although the State Department has issued a warning for Liberia and an alert for parts of West Africa, it has not issued a health alert or warning for other African countries, nor has it issued travel restrictions for West Africa (yet).

Ebola Concerns and the ADA

Employers with concerns about Ebola likely fall into one of two categories: (1) healthcare employers, whose workers would have the greatest risk of exposure, and (2) employers with employees who engage in travel to affected areas or otherwise may have been exposed. Healthcare employers should brief their employees on the symptoms of Ebola, how Ebola is transmitted, and the CDC’s screening guidelines for the disease. Healthcare employers should also review their procedures for properly handling contaminated medical waste and dealing with infectious diseases.

qszEmployers who have employees engaging in business (or recreational) travel to areas with higher numbers of reported Ebola cases should remember that the risk of becoming infected with and developing Ebola after a visit to such countries is very low due to the way Ebola is transmitted. It is important that employers keep in mind that they risk potential liability if they go too far in asking inappropriate health-related questions or taking employment actions against employees who are believed to have been traveling or potentially exposed to Ebola. Under the ADA, employers are prevented from excluding employees from the workplace for health or safety reasons unless they fall into the narrow exception of posing a “direct threat.” A direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The determination that a “direct threat” exists cannot be based on fears, misconceptions, or stereotypes, but rather, must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.  The individualized assessment must be based on reasonable medical judgment and/or the best available objective evidence. The employer must consider: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Any reasonable accommodations that would eliminate the risk of harm or reduce it to an acceptable level must be considered. The ADA also allows employers to request that employees undergo medical examinations if the examinations are job-related and consistent with business necessity. This requirement is met when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition.

Ultimately, if an employer removes an employee from his or her job because of safety concerns and cannot prove that the employee posed a “direct threat,” the employer may be found to have violated the ADA and discriminated against the employee. Because there are not international travel restrictions in place and because Ebola has a very low risk of transmission, requiring a medical examination for an employee returning from travel to West Africa would likely not be considered “consistent with business necessity.”  Employers may brief their employees on the symptoms and signs of Ebola and asking traveling employees to be alert to any such symptoms developing within 21 days after the employee’s return. Employers may also require employees to report any time when the employee is diagnosed with a contagious illness, although employees should not be required to identify the specific diagnosis or illness.

Ebola concerns and OSHA

Congress created the Occupational Safety and Health Administration (“OSHA”) as part of the Occupational Safety and Health Act of 1970 in order to assist in ensuring safe and healthy conditions in workplaces and enforcing health and safety standards for workplaces. OSHA publishes standards for specific workplace hazards such as harmful substances like chemicals or asbestos or occupational noise exposure. In addition, OSHA’s general duty clause requires employers to maintain a safe workplace, which applies to situations in which OSHA has no published standards.

OSHA has created a new website on Ebola to provide general information on this disease.  OSHA has not issued a specific standard on Ebola, although OSHA’s website indicates the agency’s belief that its Bloodborne Pathogens Standard, Respiratory Protection standard, Personal Protective Equipment standard, and General Duty Clause cover exposure to Ebola. The website includes “Interim general guidance” for workers in an environment that is known or reasonably suspected to be contaminated with Ebola:

  • Employers should follow recognized and generally accepted good infection control practices, and must meet applicable requirements in the Personal Protective Equipment standard and the Respiratory Protection standard.
  • Use proper personal protective equipment (PPE) and good hand hygiene protocols to avoid exposure to infected blood and body fluids, contaminated objects, or other contaminated environmental surfaces.
  • Wear gloves, wash hands with soap and water after removing gloves, and discard used gloves in properly labeled waste containers.
  • Workers who may be splashed, sprayed, or spattered with blood or body fluids from environmental surfaces where Ebola virus contamination is possible must wear face and eye protection, such as a full-face shield or surgical masks with goggles. Aprons or other fluid-resistant protective clothing must also be worn in these situations to prevent the worker’s clothes from being soiled with infectious material.
  • Workers tasked with cleaning surfaces that may be contaminated with Ebola virus must be protected from exposure. Employers are responsible for ensuring that workers are protected from exposure to Ebola and that workers are not exposed to harmful levels of chemicals used for cleaning and disinfection.
  • Employers must train workers about the sources of Ebola exposure and appropriate precautions. Employers must train workers required to use personal protective equipment on what equipment is necessary, when and how they must use it, and how to dispose of the equipment.

OSHA’s website also directs employers to the agency’s “Protecting Workers during a Pandemic” fact sheet for general guidance on protecting workers during a wide-spread disease outbreak.

However, certain groups, such as the American Industrial Hygiene Association, feel that OSHA is not providing sufficient guidance and standards on the Ebola virus, and these groups have urged OSHA to act quickly regarding implementing an infectious disease standard that has been on OSHA’s agenda since 2010.

Employers who are concerned about this issue should monitor the Ebola guidance and updates offered by the CDC. SGR will continue to monitor this situation as it unfolds and offer additional legal guidance as new developments arise.

If you have any questions regarding these issues, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.

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