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By now it's likely you have read multiple articles or news stories, listened to webcasts or interviews with tips and recommendations as to how employers should prepare for and handle concerns related to Ebola. This article is more of the same perhaps, but several of you have contacted me over the last several week so the topic seems worthy of just a bit more discussion. The following are ten issues employers may want to consider when developing policies, programs or procedures related to reducing the risk of workplace invention or disease transmission. WARNING1: The following contains more questions than answer so you might hear the infamous "it depends." Consider it a check list of food for thought and, as always work through these issues with your company's legal counsel and others mentioned below before taking any adverse employment action. WARNING2: The following is a long article so you may want to grab a cup of coffee or soda first.
- Americans with Disabilities Act (ADA) - Employers with 15 or more employees are generally covered under the ADA. This law prohibits employers from conducting certain medical exams, making disability related inquiries, discriminating against an individual with a disability, whom the employer perceives to have a disability or who associates with a person with a disability. So how does an employer handle an employee, for example who reports that s/he may have had exposure to a loved one who will ill with actual or suspected Ebola during recent travel to West Africa? We do have some guidance from the EEOC's 2009 Guidance on Pandemic Preparedness. Some excerpts from that Guidance includes:
Q: May an ADA-covered employer send employees home if they display symptoms during a pandemic?
A: Yes.
Q: May an ADA-covered employer require employees who have been away from the workplace during a pandemic to provide a doctor's note certifying fitness to return to work? A: Yes
Q: During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
A: Yes
2. Communication - Should or may an employer tell coworkers once it learns an employee may be infected? Employers need to tread lightly to ensure they do not disclose information that might constitute an invasion of an employee's privacy or violate the non-disclosure provisions of HIPAA.
3. Employment Practices Liability Insurance (EPLI) - If you have this coverage check with your carrier in advance of an issue arising and seek their guidance and recommendations for proactively managing any risk.
4. Family and Medical Leave Act (FMLA) - An employee who takes time off from work to care for a covered family member or him/herself and is otherwise eligible may take FMLA leave. But what if the employee declines to have a physician complete the FMLA medical certification form? Will you count the leave as FMLA-qualifying without the documentation to back you up? Or will you deny the leave as FMLA qualifying, which could subject the employee to corrective action for excessive absenteeism?
5. National Labor Relations Act (NLRA) - What if two non-supervisory employees refuse to come to work, saying they were chatting and decided that you had failed to provide a safe workplace and they were not coming back to you until you implemented more serious safety precautions? Do you fire them? Do you consider them to have quit their job as a result of job abandonment? Before you decide consider the fact that they may have just engaged in protected, concerted activity under the NLRA.
6. Negligence - Let's say an employer suspects a candidate or employee might be infected but does nothing out of concern for violating one or more of these other myriad laws. Then that candidate is hired or the employee is retained in the workplace and that employee infects a coworker. The coworker could potentially sue the employer for negligent hiring or retention claiming that but for the employer having hired or retained this person the coworker would not have been infected.
7. OSHA - Employers in health care, manufacturing and other industries are already familiar with OSHA's specific standards such as BBP, PPE, MSDA, and more. It is the employers who do not fall under any particular specific standards that may have the most questions under OSHA's general duty clause. Under that clause, each employer, "(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" OSHA adds, "Employers should educate workers about the hazards to which they are exposed and to provide reasonable means by which to abate those hazards." OSHA's website references the following for employees in the airline industry - to provide protective clothing and equipment for those with employees who may perform such as cleaning up blood, vomit, or other body fluid. But what if you have work areas regularly accessible to members of the public such as rest rooms, would those recommendations apply to those employers as well? The OSHA website also directs workers who think they have been infected to tell their employer. But they are silent as to what employers should do.
8. Title VII - Like the ADA, Title VII also prohibits discrimination based upon an individual's actual or perceived race or national origin (among other protected classes) as well as based upon the protected status of an individual with whom an employee or applicant associates. So let's say an employer imposes certain return-to-work (RTW) requirements for employees traveling to West Africa that it does not impose upon employees traveling to other geographies or countries. Could an employee upon whom the restriction is placed claim that he or she is being discriminated against because of his or her national origin, race, or that of a person with whom he associates? If so, would the safety concern trump the latter?
9. Unemployment Insurance Benefits (UIB) - What if an employee is terminated by an employer who says they could not hold the person's job during a 21 day quarantine (assume FMLA is not applicable). Would that employee be eligible for UIB? What about Example #5 above, if the employer considered them to have quit if they were no show would they be eligible for UIB? If so, that may be a cost charged to your experience rating that could impact your UI tax, surcharge or premium next year.
10. Workers' Compensation (WC) - If you are not self-insured, then your WC carrier may be your partner in addressing any claims. Talk to your carrier in advance and consider what situations may/not be covered. For example, take a government contractor with contracts and clients in West Africa. The employer tells its employees working on that contract that they are not required to travel to West Africa; the employer is providing them with teleconferencing and skyping capabilities in lieu of travel. But an employee chooses to go in person, believing it will better serve the client. Then while on conducting that business the employee contracts Ebola. Would that be a WC compensable illness? The illness was incurred while performing work but in a location that was of the employee's choosing.
If your head is spinning you are not alone. Employers, employees and any number of government agencies are all trying to anticipate reasonable, preventive measures that balance all parties' needs and interests. In the meantime, you might bookmark any number of websites including and not limited to CDC, OSHA, EEOC, HHS, NIOSH, WHO, and the White House.
Until then, be well.
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