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Ebola for Employers - Frequently Asked Questions - FAQ - 16 Oct 2014

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A series of questions and answers on Ebola for employers.

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Ebola for Employers - Frequently Asked Questions - FAQ - 16 Oct 2014

  1. 1. Ebola for Employers — Frequently Asked Questions October 16, 2014 Thomas Benjamin Huggett 1. www.littler.com 1. How is Ebola transmitted? A. According to the Centers for Disease Control (CDC), Ebola is not transmitted by casual contact. Ebola is transmitted through direct contact with a sick person’s bodily fluids, the most infectious being blood, feces and vomit. Unlike a cold or the flu, Ebola cannot be spread until an infected person is sick and showing signs and symptoms. Transmission of Ebola from contact with objects and surfaces is only known to occur with a significant amount of bodily fluids, which remain wet (drying out kills the virus), and are then placed in the mouth, eyes, mucous membranes, or an open cut. 2. What are the symptoms of Ebola? A. Ebola symptoms: high fever, severe headache, muscle pain, vomiting, diarrhea, stomach pain, or unexplained bleeding or bruising. These are symptoms common to many illnesses and do not necessarily mean the average person has Ebola. If a person has been exposed to someone with Ebola they should report these symptoms to the public health department. 3. Is there a test for Ebola? A. There is not a reliable blood test for Ebola prior to development of the illness and its visible symptoms.
  2. 2. 4. Is there a preventative vaccination for the Ebola virus? A. There is presently no vaccination for the Ebola virus. 5. Is travel to West Africa prohibited? A. The CDC updated its travel health notices to include a Warning Level 3 categorization for Guinea, Liberia and Sierra Leone because of the unprecedented outbreaks of Ebola in those countries. This warning level recommends avoiding all non-essential travel to these countries. Essential travel is defined as humanitarian aid work. All other travel is considered non-essential. 6. Can employers refuse to allow employees to travel? A. No. Employers cannot prohibit otherwise lawful conduct when an employee is off 2. www.littler.com duty. 7. Can an employer require a medical examination for an employee who has traveled to an area with an Ebola outbreak before they return to work? A. Generally, no. Under the Americans with Disabilities Act (ADA), employers can require a medical evaluation only if it is justified by business necessity. In this context, the ADA permits an employer to request medical information or order a medical examination when the employer has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” because of a medical condition. The Equal Employment Opportunity Commission's Pandemic Guidance states that an employer must take direction from the CDC or state/local public health authorities in determining whether an illness is a direct threat, and cannot make that assessment “on subjective perceptions . . . [or] irrational fears.” The ADA standard is probably not met in most workplaces at this point in time.
  3. 3. Direct care healthcare employers may be able to meet this standard depending on the nature of the travel and exposure during the travel. Review of the infection control program in place for these employers should consider this element. The CDC has recommended that individuals who do not exhibit any symptoms and who have had no known exposure self-monitor for symptoms for a 21-day period after leaving an outbreak area. Employers may encourage employees to engage in this monitoring on their own. 8. Can employers impose a 21-day quarantine for employees returning from travel to West Africa so that they do not come into the workplace for that period? A. There is no direct legal prohibition on imposing a quarantine. This action does, however, raise a number of potential legal concerns under medical privacy laws, disability discrimination laws, state wage and hour laws, as well as potential race and national origin discrimination claims. It must be noted in this regard that the CDC has advised those traveling that when they return they can continue normal activities, including going to work. If an employer is going to impose a quarantine period, employers should ensure that no adverse employment action is taken. 3. www.littler.com
  4. 4. 9. What should employers do with co-workers who are nervous because of 4. www.littler.com travel? A. Employers should educate their employees on the methods of transmission of Ebola, explain that transmission risk is very low, assure them that the situation is being monitored, and emphasize good personal hygiene practices. Employers are responsible for the conduct of their managers and employees and must ensure they do not discriminate against employees who are African or who have visited West Africa. Employers must also follow all medical privacy considerations related to any sick or ill employee. 10. Does the Occupational Safety and Health Administration (OSHA) or its state plan counterparts require employers to have an Ebola policy? A. OSHA’s Bloodborne Pathogens (BBP) standard requires employers to have a program, protections and training for employees who are occupationally exposed to blood or specific bodily fluids. This standard extends to cleaning up blood in the workplace. All employers with a BBP program should review their BBP program for any issues arising specifically from Ebola that are not already included in the program. With respect to employees in California, the Division of Occupational Safety and Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard has provisions that require protection of employees from infectious diseases transmitted by inhaling air that contains viruses (including Ebola), bacteria or other disease-causing organisms. The ATD standard is limited to specific healthcare providers but does provide a potential model for other locations. For direct care healthcare employers, the federal Department of Health and Human Services and CDC have issued a Health Care Facility Preparedness Checklist for Ebola Virus Disease that should be followed.
  5. 5. 11. May an employee refuse to perform his or her job based on concerns about 5. www.littler.com Ebola? A. Under the Occupational Safety and Health (OSH) Act, employees may refuse to work only where there is an objectively “reasonable belief that there is imminent death or serious injury.” Refusing to work without such an objective belief may result in disciplinary action by the employer. Given the current isolated nature of employees who come in contact with Ebola patients, this standard is unlikely to be satisfied absent particular factual circumstances. However, given the level of public interest and concern, extreme care should be taken to avoid adverse employment actions at this time due to a refusal to work. Use of counseling, education and other available managerial skills are appropriate to avoid confrontations and legal challenges. Littler Mendelson, P.C.’s Workplace Health and Safety Practice focuses on advising employers on a daily basis. If you have questions or need further information please contact: Thomas Benjamin “Ben” Huggett 267.402.3035 tbhuggett@littler.com This document is not a do-it-yourself guide to resolving employment disputes or handling employment litigation, nor is it a substitute for experienced legal counsel. This document does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related matter. Further, this document does not purport to provide medical advice or counsel.

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