Businesses should always be prepared to deal with viruses or sick employees. The Ebola situation is real and not going away soon. Let’s walk thru what your business can do to be prepared in the face of Ebola or any potential pandemic (a“pandemic” is a global “epidemic”).
WHAT IS EBOLA
Ebola is a rare and deadly disease caused by infection with one of the Ebola virus strains.
Ebola is caused by infection with a virus. It was first discovered in 1976 near the Ebola River in what is now the Democratic Republic of the Congo. Since then, outbreaks have appeared sporadically in Africa. The natural reservoir host of Ebola virus remains unknown. However, researchers believe that the virus is animal-borne and that bats are the most likely reservoir.
SYMPTOMS OF EBOLA
- Fever (greater than 38.6°C or 101.5°F)
- Severe headache
- Muscle pain
- Abdominal (stomach) pain
- Unexplained hemorrhage (bleeding or bruising)
Symptoms may appear anywhere from 2 to 21 days after exposure to Ebola, but the average is 8 to 10 days.
HOW TO PROTECT AGAINST EBOLA
The United States Centers for Disease Control and Prevention (CDC) provides the following advice to protect against Ebola:
- Wash hands frequently or use an alcohol-based hand sanitizer.
- Avoid contact with blood and body fluids of any person, particularly someone who is sick.
- Do not handle items that may have come in contact with an infected person’s blood or body fluids.
- Do not touch the body of someone who has died from Ebola.
- Do not touch bats and nonhuman primates or their blood and fluids and do not touch or eat raw meat prepared from these animals.
- Avoid hospitals in West Africa where Ebola patients are being treated. The U.S. Embassy or consulate is often able to provide advice on medical facilities.
- Seek medical care immediately if you develop fever (temperature of 100.4°F/ 38.0°C or higher) and any of the other following symptoms: headache, muscle pain, diarrhea, vomiting, stomach pain, or unexplained bruising or bleeding.
- Limit your contact with other people until and when you go to the doctor. Do not travel anywhere else besides a healthcare facility.
The EEOC has provided guidelines for “Pandemic Preparedness in the Workplace.” The following questions and answers discuss employer rights when confronting serious health issues:
May an employer send employees home if they display influenza-like symptoms during a pandemic?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.
During a pandemic, how much information may employers request from employees who report feeling ill at work or who call in sick?
ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.
During a pandemic, may an employer take its employees’ temperatures to determine whether they have a fever?
Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperatures.
When an employee returns from travel during a pandemic, must an employer wait until the employee develops symptoms to ask questions about exposure to pandemic during the trip?
No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
During a pandemic, may an employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?
No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.
If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
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?
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
Example: During an influenza pandemic, an employer directs a supervisor to contact an employee who has not reported to work for five business days without explanation. The supervisor asks this employee why he is absent and when he will return to work. The supervisor’s inquiry is not a disability-related inquiry under the ADA.
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?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
NOTE: These questions and answers were developed by the EEOC in response to the 2009 H1N1 virus. While each disease and situation is unique, the questions and answers should apply generally . However, just as the Ebola situation is evolving, so too may the EEOC’s guidelines and the law. This article is not intended as a substitute for seeking legal advice regarding your particular workplace decisions.