Addressing Employee Safety Concerns About Ebola

by David W. McBride

Ebola_virus_emThe Ebola epidemic in West Africa has dominated the news cycle for months but until recently had been a concern American employers could monitor from afar.  Recent news stories about sick aid workers returning to the U.S. from Africa and Ebola scares on U.S.-bound airplanes have heightened concerns.  Most alarming, however, is the story of the Texas man who recently died of Ebola and the revelation that one of his healthcare providers has also tested positive for Ebola.  Naturally, many employers and employees are concerned about potential exposure to Ebola when colleagues return from travels in Africa.  What can employers do to allay their employees’ fears about the virus, and what should be done with employees returning from Africa?

The knee-jerk reaction many employers may have is to ask an employee returning from West Africa to self-quarantine until there can be assurances that the employee is not infected or contagious.  This could be accomplished through telecommuting and temporary leaves of absence (paid or unpaid).  However, employers seeking to force employees to take unpaid leave should be mindful of their obligations under the Americans with Disabilities Act, which protects employees from discrimination based on disability or perceived disability.

Particularly problematic may be what to do at the end of the “quarantine” period, as an employer might want the employee to get some sort of medical certification that he or she does not have Ebola before returning to work.  However, the ADA permits disability-related inquiries only when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform her job will be impaired by a medical condition or the employee will pose a direct threat due to a medical condition.  In the case of Ebola, the concern typically will be whether the employee poses a threat; however, the EEOC’s Enforcement Guidance on Disability-Related Inquiries makes clear that such belief must be based “on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence” and cannot be based on general assumptions.  Thus, an employer who seeks medical certification from an employee solely on the basis that the employee has traveled to Africa risks violating the ADA.  Still, some employers may decide to accept that risk to alleviate employees’ fears.

Employers also would do well to educate employees about Ebola and to implement a plan of action in case an employee reports being exposed to Ebola.  Information about the true risks of contacting Ebola may be the most effective method of alleviating fears about the disease.

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