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Ebola And The Work Place

The World Health Organization has declared Ebola a public health emergency. Fears of an Ebola epidemic in the U.S. are rising. Stories and speculation are everyday fodderfor the internet and media outlets. To what extent the worst may be realized, time will tell. But how do the legitimate concerns of infection mesh with legitimate work place issue? For example, can an employee refuse work tasks, like travel on airplanes, for fear of infection? If an employee fears infection and stays out of work, can employers ask questions about the employee’s health? What should employers do if they believe a worker may have been exposed to Ebola?

Under the Occupational Safety and Health Act, employers have an obligation to protect employees from recognized hazards. Generally speaking, however, unless there is imminent danger of infection, an employer can insist that its employees be present at work and participate in the normal functions of their job.   This may include travel on airplanes or exposure to large groups of people.

How, then, does an employer respond to employees fears and the rise of sick day calls?

Under the Americans with Disabilities Act, limited circumstances permit an employer to ask questions about an employee’s health. When an employee calls in sick, however, the ADA permits employers to ask employees what they are experiencing. That inquiry can include questions about whether an employee is experiencing fever or other Ebola-like symptoms. The ADA also allows employers to ask employees whether they have traveled to areas where there is an Ebola outbreak. Employers need to develop procedures depending on the responses to these questions and determine the real risk that an employee could have been exposed.

Moreover, absent a reasonable suspicion based upon objective evidence, employers may not require employees to undergo medical exams.   This standard—reasonable suspicion based upon objective evidence—may be satisfied by looking at the employee’s performance in the core functions of his/her job, collecting evidence from the employee about symptoms and travel, or gathering other evidence that would allow the employer to reasonably conclude that the employee may pose a health risk. If an employee is showing symptoms of Ebola after travel to an at-risk region, or exposure to other individuals who have recently travelled to at–risk regions, it might be reasonable for an employer to urge a doctor’s visit. Again, employers must develop appropriate procedures to address the situation and risks that an employee, calling in sick or present in the workplace, may be at risk for exposure.

The employment relationship requires consistent communication between employers and employees to remain effective. The ADA specifically requires that employers engage in an interactive process with employees to address accommodations. It is probably wise to engage in the same process as we face this public health emergency inside the workplace. Whether the fear of an Ebola outbreak are overstated or understated, employers and employees need to be prepared to make intelligent inquiries and provide honest responses. Most importantly, employers and employees need well defined action plans to address even the slightest recognized risk of exposure.

David S. Fried is a trial lawyer who represents individuals and small businesses in commercial, employment and personal injury litigation.

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