By A. Troutman
Oct. 17, 2014
Even though the Ebola virus disease has infected relatively few people in this country so far, fear and anxiety over possible spread of the virus are reaching a frenzied pitch.
Employees have expressed serious concerns about co-workers who have traveled overseas, the safety of air travel and even whether they should worry if a colleague sneezes in their vicinity. There are reports that some employees have gone so far as to refuse to performing duties they consider to be hazardous. Employers must therefore begin educating workers and implementing measures to protect and reassure them. While there is no simple solution, companies can take steps to help ease employees' fears, reduce potential liability and improve productivity.
A first positive step for employers is to begin engaging employees and customers about the current situation. For example, employees are far more likely to catch the flu than Ebola. Companies should begin by designating someone to be in charge of gathering information, implementing protocols and handling all pertinent communications within the organization.
These communications should include providing information, such as current CDC guidance and standards, to managers and workers. More importantly, they should explain concrete steps the company is taking to protect everyone in the workplace and articulate the employer’s dedication to protecting everyone. This dedication of course is not limited to safeguarding against Ebola. Especially this time of year, companies should emphasize fundamental practices like frequent hand-washing and getting flu shots.
An important and legal step employers can take is to ask employees about their travel plans. For example, travel through West Africa opens the door to make further inquiries, as long as those inquiries are narrowly tailored.
The company can ask whether an employee has had contact with anyone who has or may have Ebola and whether the employee is experiencing any flu-like symptoms, particularly a fever. These questions are consistent with Centers for Disease Control and Prevention guidance and do not violate the Americans with Disabilities Act.
If an employee who may have been exposed to Ebola is experiencing flu-like symptoms, further confidential medical screening should be required. An asymptomatic employee who has potentially been exposed to Ebola may be monitored during the virus' recognized incubation period. The company needs to be cautious not to ask questions that would expose an underlying disability, however.
Even though the Equal Employment Opportunity Commission considers taking an employee's temperature to be a medical examination, this can still be done ifit is job-related and consistent with business necessity. So the likelihood of whether the employee has been exposed will determine what the employer can do in terms of monitoring temperatures. This is a fact-specific inquiry, but using the CDC's recommended algorithm and questions makes the employer's actions much more likely to be legal in the eyes of the EEOC.
Another concern arises if employees refuse to work because they fear being exposed to Ebola, for any number of reasons. Depending upon the circumstances, such a refusal could be protected under OSHA or similar state law whistleblower provisions.
Under OSHA, the employee's fear does not have to be actual, only reasonableunder the circumstances. If one or more employees refuse to work because of mutual fears about exposure to Ebola, their actions would probably be protected under the National Labor Relations Act. So employees should consider this before disciplining or terminating the employees involved.
As this situation evolves, employers should continue to follow CDC guidance and avoid knee-jerk reactions, no matter how provocative an employee's activities may be. Employee safety should, of course, always be the company's highest priority, and the actions described above can help employers effectively manage related situations. As always, companies should consult legal counsel regarding specific situations.
A. Kevin Troutman is a partner in the Texas offices of national labor and employment law firm Fisher & Phillips and chairs the firm’s national Healthcare Practice Group. Comment below or email firstname.lastname@example.org.
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