This might be too much.  But be prepared.

This might be too much. But be prepared.

The recent outbreak of the Ebola virus in West Africa, with the few isolated cases occurring in the United States, is spurring employers to review their emergency response plans for pandemic preparedness.  In seven steps, this writing sets forth best practices for pandemic preparedness, considerations regarding travel during a pandemic, and addressing employees’ immediate concerns without running afoul of relevant employment laws.

1.        Don’t Panic and Stay Informed

With any emergent threat, accurate and reliable information is critical; with a pandemic threat, not having accurate and reliable information causes panic.  Note that as of this writing, the current Ebola outbreak has not been declared a pandemic (meaning, a global epidemic), but employers should monitor communications from the Centers for Disease Control and Prevention (CDC) for up-to-date information.

2.         Consider Emergency Pandemic Preparedness

Employers should identify an emergency response coordinator to be responsible for preparedness and response planning.  Ideally, the coordinator will have expertise in equal employment laws because the Americans with Disabilities Act (ADA) impacts the way employers may engage employees regarding medical information, and certain employee behavior could trigger claims of harassment and discrimination.

3.         Communicate Accurate and Reliable Information To Employees

The emergency response coordinator should stay abreast of local public health authority assessments and information from agencies like the CDC, the World Health Organization (WHO), and Health and Human Services (HHS).

As an initial matter, employers should note that the risk of transmitting the Ebola virus is very low.  Current medical information tells us that it is transmitted only through direct contact (through broken skin or mucous membranes in, for example, the eyes, nose, or mouth) with:

  • Blood or body fluids (including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen) of a person who is sick with Ebola;
  • Objects (like needles and syringes) that have been contaminated with the virus; or
  • Infected mammals (e.g., humans, monkeys, apes, or bats).

Ebola is not spread through the air or by water, or in general, by food.  See http://www.cdc.gov/vhf/ebola/transmission/index.html.  Therefore, the people most at risk are healthcare workers.

People infected with the virus are not contagious until they present symptoms, which can appear between 2 and 21 days after exposure.  Symptoms include fever, headache, stomach pain, diarrhea, vomiting, muscle pain, and unexplained bruising or bleeding.  If an individual has come into contact with someone infected with the Ebola virus, the individual should seek medical attention immediately.

4.         Encourage Infection-Control Practices 

Employers should encourage employees to adopt infection-control practices, such as regular hand washing or wearing protective equipment.  If an employee feels symptomatic, she should be encouraged to stay at home – and the employer should allow her to telework as a reasonable accommodation.  If a pandemic occurs, employers should also allow employees who reasonably fear contracting illness to telework.

5.         Recognize the ADA’s Impact on How an Employer May Engage an Employee Regarding Health Information

The ADA generally prohibits employers from asking employees questions that are likely to elicit information about a disability, and from requiring medical examinations of employees.  For example, an employer may not ask an employee whether she has a poor immune system, because that question is likely to elicit information about a potential disability (an immune deficiency is considered a disability).  In contrast, an employer may ask an employee about symptoms of the flu, because that inquiry is not likely to elicit information about a disability.

The ADA also prohibits employers from requiring medical examinations of employees. A medical exam is determined by factors such as whether the test involves the use of medical equipment; whether it is invasive; whether is designed to reveal the existence of physical or mental impairment; and whether it is given or interpreted by a medical professional. For example, an employer may not require employees to measure their body temperature.

Employers may, however, ask disability-related questions or require medical examinations if they are job-related and consistent with business necessity.  Generally, a disability-related question or medical exam is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.  The employer’s reasonable belief must be based on objective evidence obtained by, or reasonably available to, the employer. Objective evidence includes information from the CDC or public health authority.

A direct threat is a significant risk of substantial harm to other employees.  The EEOC identifies four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.  For example, the 2009 H1N1 influenza scare, though a pandemic, was not a “direct threat.”  If a pandemic were more severe than H1N1 (as an Ebola pandemic would certainly be, due to its higher risk of casualty), then it would likely be a direct threat.  EEOC: Pandemic rules based on ‘direct threat’, 2010 WLNR 769441.  If a pandemic poses a direct threat, the ADA allows employers to ask employees disability-related questions and to require medical examinations.  Accordingly, employers should monitor local public health authorities for up to date assessments.

When employers begin planning for a pandemic, a common question is whether they may survey their workforce for employees who may be susceptible to illness and may miss work as a result.  Generally, the answer is no.  Such a survey involves inquiries likely to elicit information about a disability (a compromised immune system) and is prohibited by the ADA.  However, employers may ask questions that are not disability-related if the questions are designed to  identify potential non-medical reasons for absence during a pandemic.  The EEOC has developed the following ADA-compliant survey:

 

ADA-COMPLIANT   PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without   specifying the factor that applies to you. Simply check “yes” or “no” at the   bottom of the page.

 

In the event of a pandemic, would you be unable to come to   work because of any one of the following reasons:

  •   If schools or day-care centers were closed,   you would need to care for a child;
  •   If other services were unavailable, you would   need to care for other dependents;
  •   If public transport were sporadic or unavailable,   you would be unable to travel to work; and/or;
  •   If you or a member of your household fall into   one of the categories identified by the CDC as being at high risk for serious   complications from the pandemic influenza virus, you would be advised by public   health authorities not to come to work (e.g., pregnant women; persons with   compromised immune systems due to cancer, HIV, history of organ transplant or   other medical conditions; persons less than 65 years of age with underlying   chronic conditions; or persons over 65).

 

Answer: YES______ , NO_______

 

http://www.eeoc.gov/facts/pandemic_flu.html.

6.         Address Issues Around Travel

Employers should continue to monitor CDC travel restrictions and recommendations, found at http://wwwnc.cdc.gov/travel/notices.  As of October 20, 2014, the CDC recommends avoiding non-essential travel to Guinea, Sierra Leone, and Liberia.  Travelers to the Democratic Republic of the Congo should practice enhanced precautions.  Nigeria was declared free of the Ebola virus, but the CDC still recommends that travelers practice usual precautions.  The CDC has not issued any travel recommendations within the United States.

While employers should feel free to impose travel for work restrictions on their employees, employers should not attempt to forbid their employees from traveling for personal reasons.  Such a restriction on personal travel could violate any applicable state laws that prohibit interference with an employee’s off-duty conduct, and could also interfere with an employee’s FMLA rights if the employee needs to travel (even to an infected area) to care for a family member.

During a pandemic, an employer may ask an employee returning from travel whether the employee is experiencing symptoms (this is not a disability-related inquiry prohibited by the ADA).  If the CDC or local health authority recommends that people who visit specific locations remain at home for several days until it is clear they do not have pandemic symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Additionally, the EEOC’s guidance establishes that an employer may require an employee who traveled during a pandemic to provide a doctor’s note certifying fitness to return to work.  Practically speaking, however, health care professionals may be too busy during a pandemic to provide a fitness certification.  Instead, employers may want to consider accepting a certification from an alternative health provider, such as a local clinic that is equipped to conduct testing.

7.         Manage Employees’ and Management’s Behavior

Employees may be understandably concerned about their risk of contracting the virus at work and sometimes all the assurances in the world about “low risk” will not assuage employee fears.  These fears could potentially result in employees refusing to work with or making comments about coworkers they feel may be at high risk for the virus due to the employees’ nationality and/or familial relations.  This could lead to claims of racial or national origin harassment/discrimination claims.  An employer who learns of any such conduct should remind employees of the company’s harassment and discrimination policies, and may even wish to provide refresher training to employees (and incorporate an example of inappropriate comments regarding Ebola victims or countries where the virus has stricken as part of that training).  When appropriate, the employer should discipline employees who violate those policies.

At the same time, employers should be aware of potential Occupational Safety & Health Administration (OSHA) violations and claims of whistleblowing and/or retaliation for disciplining an employee who has refused to work under conditions the employee perceives as unsafe or unhealthful.  Under OSHA, an employee has a right to refuse to work based upon a perceived safety hazard only if the employer has refused the employee’s request to eliminate the risk, the employee had a “good faith” belief (i.e., genuine belief, even if mistaken) of imminent danger, a reasonable person would agree with the employee’s assessment, and there is insufficient time to correct the danger through normal enforcement channels (e.g., OSHA inspection).  Even if the employee does not meet these requirements, if the employee complains to OSHA or (in some jurisdictions, to management) about the situation and is disciplined, the employer risks a retaliation and/or whistleblower claim.   Employers should assess the situation, considering all of these factors, prior to ordering the employee to work and/or taking any disciplinary action against the employee for his refusal to work.

Conclusion

Every few years, an outbreak like the H1N1 influenza virus or the Ebola virus can cause panic in the workplace.  Employers should develop and routinely review emergency pandemic preparedness plans to effectively communicate and engage with employees during a pandemic, and to do so within ADA restrictions.  An emergency coordinator should monitor information from reliable sources like the CDC, and communicate with employees.  Employees should be encouraged to practice infection-control methods such as frequent hand washing.  Employers should allow employees flexibility to telework and must use caution before asking employees about health information.  However, if a pandemic poses a direct threat to public health, employers may ask employees direct questions about their health and may even require medical exams relating to the outbreak.  If employees travel during a pandemic, employers may inquire where the employee traveled and whether the employee is symptomatic.  To the extent that employees engage in certain conduct based on their reactions to the Ebola threat, employers should consider all relevant employment laws prior to taking any actions around these issues.

Other sources of information:

EEOC guidance on Pandemic Preparedness in the Workplace and the ADA, available at http://www.eeoc.gov/facts/pandemic_flu.html

Centers for Disease Control and Prevention, http://www.cdc.gov/

World Health Organization, http://www.who.int/en/

Our law clerk Ryan Kunkel was extaordinarily helpful in putting this post together.  Thanks, Ryan!