Given the attention being paid by the national news, a number of employers have asked for guidance on how to address employee concerns regarding the transmission of Ebola without running afoul of Title VII’s prohibitions on disability discrimination. The CDC and other agencies have all indicated that the risk of transmitting Ebola is low at this time and employers should be cautious not to overreact. The ADA prevents employers from making disability-related inquiries and requiring medical examinations except under limited circumstances. During employment, an employer is only permitted to require a medical examination if they have a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition. Similarly, the ADA prohibits employers from excluding employees from the workplace for health or safety reasons unless they pose a direct threat. The EEOC has not issued specific guidance for employers on how to address issues related to Ebola in the workplace. However, during the H1N1 pandemic in 2009, the EEOC issued guidance for pandemic preparedness in the workplace that provides useful guidance on how to address concerns about Ebola. In its guidance, the EEOC indicated that an employer may not send its employees for medical examinations or refuse to allow them to come to work simply because they have traveled to any area where the illness is present. This guidance is particularly important with Ebola because the risk of transmission is low. However, an employer is permitted to inquire as to whether employees have traveled to an area where Ebola has been present since this would not be considered a medical inquiry. All responses to this inquiry should be kept confidential. If the CDC or other health officials issue recommendations that individuals who visit specified locations remain home for a period of time, then at that time, it may be permissible to require employees to stay home. In the meantime, an employer should not quarantine or send home its employees unless they begin exhibiting symptoms of Ebola. At that point, an employer may require that the employee to go home. Individuals infected with Ebola cannot spread the disease until symptoms appear. According to the CDC, the incubation period for Ebola is 21 days. Symptoms include fever, muscle pain, vomiting, diarrhea, stomach pain, or unexplained bleeding or bruising. Employees who have traveled to areas where Ebola has been present should be advised to check for signs and symptoms of Ebola for 21 days. In the meantime, to allay employee fears, the CDC has issued a fact sheet about Ebola that may be provided to all employees and posted at the work site to educate them about the low risk of transmission as well as how to check for signs and take action if symptoms occur. Ebola is spread through direct contact with blood and body fluids of a person who is sick with Ebola. It is not spread through the air, water, or food. Further, CDC guidance for hospitals indicates that it is safe for Ebola patients to use sanitary sewers for the disposal of patient waste. According to the CDC, simple protocols can be used to protect against the possible spread of Ebola, such as frequent hand-washing, not touching the blood or body fluids of people who are sick, and not handling items that may have come in contact with a sick person’s blood or bodily fluids, like clothes, bedding, needles or medical equipment. OSHA has guidance for blood and body substance spill management in its Bloodborne Pathogen Standards, which essentially involve the removal of bulk spill matter, cleaning and disinfecting the site.
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About Gregory P. Currey
Gregory Currey is an experienced and efficient litigator who focuses his practice on Labor and Employment Law and Defense Litigation. He represents employers in State and Federal employment litigation, focusing on all aspects of employee relations, including compliance with Title VII, the ADA, FMLA, FLSA, immigration issues involving I-9s, the E-verify program and H-1B visas, ERISA, retiree health benefits and the NLRA. In addition to handling employment litigation, Mr. .Currey represents companies and individuals in general litigation, with extensive experience in construction litigation. In addition to his litigation work, Mr. Currey counsels businesses and organizations to ensure compliance with State and Federal employment laws, reviews and drafts policies for employee handbooks and leads employee and management training programs. You can also connect with Offit Kurman via Facebook, Twitter, Google+, YouTube, and LinkedIn.