Ebola Preparedness for South Carolina Employers

 

By: Matthew Korn, Fisher & Phillips LLP

 

Over the past several weeks, the news media has extensively covered the outbreak of the Ebola Virus in West Africa and transmission of the disease in the United States.  Employers have already begun responding to employee and customer concerns regarding Ebola in the workplace.  As we continue to work through these issues, it is important that employers carefully consider their response strategy, to protect their employees and customers while avoiding legal liability.

Based on the large number of calls we have received from clients, there are three main issues of concern.  First, employers have asked whether it is appropriate to “quarantine” employees by not allowing them to work for 21 days after travel to an affected country.  Second, some employers are asking questions about travel plans, symptoms of Ebola, and even considering taking employees’ temperatures.  Third, many employers are concerned that co-workers who have not traveled to an affected country will not show up for work.  By considering these issues in advance, employers can develop a strategy that minimizes legal risk.

 

Matt Korn, Attorney at Fisher & Phillips from MidlandsBiz on Vimeo.

 

Question #1:  Can I Quarantine Exposed Employees?  We have been asked this question by several companies, especially where telecommuting is not an option.  Employers should generally follow guidance from the CDC and state health department to reduce the risk of legal liability.  Currently, the CDC is not recommending mandatory quarantine, but has recommended travel restrictions and monitoring for persons who had direct contact with an infected individual.  South Carolina is currently following the federal guidance.

Realistically, an employer cannot “quarantine” an employee.  But it could place an employee on leave of absence during the 21-day incubation period, to determine whether the employee is infected; however, this strategy potentially exposes the employer to liability under the ADA.  If an employee is placed on leave of absence, the employer must decide whether or not to pay the employee for this time.  While paying or not paying the employee does not affect whether there was a substantive ADA violation, paying the employee reduces the risk that the employee will file a charge with the EEOC and it limits potential damages in the event of litigation.

 

Question #2:  Can I Ask Questions About Ebola Exposure and Take Employees’ Temperature?  If an employee travels to West Africa, or is otherwise potentially exposed to Ebola, employers can and should ask certain questions.  However, employers should be careful to tailor their questions so as not to reveal any information about a disability.  For example, employers may inquire about the employee’s travel plans, whether he had contact with anyone who was exposed to Ebola, and whether the employee is experiencing any flu-like symptoms.  However, employers should not ask whether the employee is more susceptible to Ebola than others, as this may tend to reveal a disability.

The Equal Employment Opportunity Commission considers taking an employee’s temperature to be a medical examination, which is normally prohibited unless the employer determines it is job-related and consistent with business necessity.  So, depending on where the employee traveled and the likelihood of exposure, taking employee temperatures may violate the ADA.  At this point, the CDC and DHEC have provided guidance regarding people who return from affected countries and in some cases requiring people to be monitored by health department officials.  Therefore, unless DHEC would require mandatory screening, taking an employee’s temperature presents legal risk.  This situation does present opportunities to remind employees of basic hygiene practices (e.g., regular hand washing, recommended flu shot), which are especially important during the flu season.

 

Question #3:  What If Other Employees Refuse to Work?  Many employers are facing this issue and unions are seizing upon this opportunity to organize one-day “strikes.”  If your employees refuse to work because they are afraid of becoming infected with Ebola, their refusal may be a protected work refusal under OSHA’s whistleblower protections, or similar state laws.  Additionally, if several employees refuse to work, essentially go on strike, this work refusal would likely be protected under the National Labor Relations Act.  Therefore, employers must consider whether refusal to work is protected before taking any adverse action, such as termination.

Obviously, the Ebola outbreak is an evolving situation and employers need to carefully consider their response, to maintain workplace safety and to avoid potential liability under a variety of federal and state laws.  The strategies listed above can help employers navigate this challenging situation.  Employers should consult their legal counsel to discuss specific situations.

 

 

Matt Korn, Attorney at Fisher & Phillips from MidlandsBiz on Vimeo.