Ebola outbreak raises key issues for employers

While the Ebola outbreak has largely faded from front-page headlines in the United States, employers would be well-advised not to let the issue fall off their radar. The disease remains a deadly reality in regions of West Africa and for employers with employees who are at risk of being exposed, keeping the disease out of the workplace remains a priority.

Employers may be surprised to learn that efforts to keep Ebola out of the workplace may run up against a patchwork of employment laws that protect employees. While reminiscent of the H1N1 outbreak a few years ago, Ebola's long incubation period and high mortality rate have raised the stakes for employers, employees, and the general public.

Until recently, there were almost-daily revisions of guidelines from the Centers for Disease Control and Prevention (CDC) and the Minnesota Department of Health (MDH), which may have made employers feel like they were chasing an ever-moving target. There is no one-size-fits-all solution and proper planning depends on several factors. Here are a few guidelines:

When the outbreak in West Africa first occurred, the CDC issued a Level 3 travel warning urging U.S. residents to avoid nonessential travel to the area. However, employers seeking to limit employee travel to West Africa may face legal risk, such as infringement of leave rights under the Family and Medical Leave Act (FMLA).

Still, employers learning that an employee is traveling to an affected area may ask about the employee's travel plans, whether the employee had contact with anyone exposed to Ebola, and upon an employee's return to work, whether they are experiencing flu-like symptoms. Because the CDC has issued monitoring recommendations for individuals who have traveled to outbreak locations regardless of potential exposure or symptoms, employers have a legitimate basis for requesting that employees report travel to these locations as well as any potential exposure to the virus.

A big question, most recently raised in the case of the Maine nurse who refused to obey an isolation order, is whether employers can require an employee exposed to the virus to remain away from work during the 21-day incubation period. A related question is whether an employer can require an employee to obtain a medical certification before returning to work. Without a proven "business need" for requiring the individual to stay away, an employer could be liable under the Americans with Disabilities Act (ADA) or other applicable state laws for "regarding" the employee as being disabled. Here are a few potential scenarios:

Scenario 1: No exposure, no symptoms. For an employee who traveled to West Africa but who was not exposed to the virus and who does not exhibit symptoms, requiring a leave of absence from work would likely violate the ADA and state laws because the risk of contracting the virus is slight.

Scenario 3: Exposure, no symptoms. This poses the most difficult scenario because the law remains unclear. The employer may be justified in placing the employee on mandatory leave based on recent guidance, for example, from the MDH, which provides that individuals "with a known exposure" to Ebola are prohibited from using local public transit or attending mass gatherings. Employees kept off work could qualify for FMLA.

Scenario 4: Quarantined employee. A final scenario is where an employee is quarantined by state health officials. On Oct. 27, it was announced that in addition to monitoring the health of all individuals returning to Minnesota from West Africa for 21 days, the MDH will quarantine all individuals who "provided health care to an Ebola patient and have known exposure." While this was the position of MDH in October, it's not clear that this would be the position today. However, if an employee was quarantined by the state, Minnesota law prohibits employers from penalizing these employees, who may also be eligible for FMLA.

Employers must be careful and should advise managers not to discriminate against employees who are African or who have visited West Africa. Such discrimination could violate Title VII (concerning national origin) as well as the ADA (because of a perceived disability).

One little-discussed aspect of exposure to infectious diseases like Ebola is the fact that workers' complaints and refusal to work may be protected by state and federal law. In particular, under OSHA's anti-retaliation provisions, an employee may be protected from refusing to work because of the employee's safety concerns. In addition, under federal labor law, employees in union and nonunion workplaces may be protected if they refuse to work because of concerns about safety of the workplace.

The potential spread of the Ebola virus in the U.S. has raised many issues for businesses in a variety of industries regarding employee safety and rights. As businesses review the nuances associated with infectious diseases in the workplace, it is important to become knowledgeable about the issue and to react in a manner that meets the needs of your organization while safeguarding your employees.