Legal Expert: OK to Screen Certain Employees for Ebola

News Updates

 

Employers concerned about the spread of the Ebola virus in the United States don’t have to sit on their hands and do nothing, even if the risk of the disease spreading is low.

The risk of Ebola spreading is highest among health care workers including laboratory workers, law enforcement and other first responders, airline workers, funeral and mortuary workers, and humanitarian workers, notes Willis on its online Ebola Response Center. (Willis is a global insurance broker.) These workers should follow infection control strategies for their lines of work, such as the use of personal protective equipment and proper donning and doffing of equipment.

But following the death of Thomas Eric Duncan, the Dallas Ebola patient from Liberia, many HR professionals with employees who have lower-risk jobs wonder what they can do to protect their workforces from the disease.

Anxiety is high in the Dallas area, according to Kevin Troutman, an attorney with Fisher & Phillips in Houston. He recently received a phone call from a client who had a sick employee. The caller was very concerned about what to do if the employee had Ebola. 

Remember what can be done to prevent the spread of infections in the workplace, Troutman recommended. If someone is sick, send them home. If employees are sick and are asking if they should come in, tell them to stay home. Make soap available to employees and encourage them to frequently wash their hands.

Employees Concerned

These steps may not be enough, though. And despite pat assurances from many that Ebola is unlikely to spread in the United States, HR isn’t the only one worried about Ebola. Employees are, too, particularly the closer they are to where an instance of the disease has occurred.

So Troutman recommends sending out a notice to employees telling them what they can do to try and help prevent the spread of illness, not just Ebola, but also the flu now that flu season is arriving.

Employers also may choose to adopt a more controversial suggestion from Troutman, but one that addresses the fact that screenings at five airports in the United States as of Oct. 8, 2014 (Atlanta, Chicago-O’Hare, Newark, N.J., New York City’s JFK, Washington-Dulles in D.C., ), may be inadequate to catch everyone who has the virus.

After all, the Ebola virus can lie dormant up to 21 days after exposure to the disease, according to the Centers for Disease Control and Prevention (CDC). Someone with the condition may manage to sail through checks at the airports or arrive at any number of other entry points in the United States.

Medical Screening

Employers may decide to institute medical screenings of their own for employees arriving back from affected areas in West Africa, Troutman said. Affected countries so far include Guinea, Liberia, Nigeria, Senegal and Sierra Leone, as well as a smattering of others to a lesser extent, such as Spain, after a nurse there became infected with the disease.

Although the Americans with Disabilities Act (ADA) prohibits medical examinations of employees except in limited circumstances, Troutman said this would meet that criteria.

That doesn’t mean medical screening would be necessary for anyone who is originally from the countries affected so far. Medical screening of recent travelers back from these countries might all too easily devolve into that, making it a slippery slope. Medical exams for anyone who is merely from these countries would violate the ADA, as there is no direct threat to an individual’s or others’ health.

The ADA isn’t the only law to be concerned about. Troutman cautioned that if an employer knows that someone has returned from a trip to one of these countries and doesn’t have him or her screened for Ebola, there may be potential liability under the Occupational Safety and Health Act.

Employers also might encourage workers with family members who have returned from travel to these nations to get tested and keep an eye out for symptoms as well.

One word of caution—medical exams of employees can’t be fishing expeditions for any illnesses or disabilities the worker might have. That also would violate the ADA.

The fact is the Ebola outbreak isn’t just a threat to medical health; it raises potential legal hazards as well. And while the Equal Employment Opportunity Commission (EEOC) has provided some guidance on pandemic preparedness in the workplace and the ADA, it only goes so far, and is only guidance, not a document that has gone through notice-and-comment rulemaking. The guidance also is largely untested in the courts. But the EEOC does note that an employer may ask questions about an employee’s exposure to pandemic influenza during a trip even before the employee develops influenza symptoms, saying, “These would not be disability-related inquiries.”

In addition, the EEOC states in its guidance, “Direct threat is an important ADA concept during an influenza pandemic. Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.”

The commission adds, “During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”

Then too, there remains the anxiety among workers and a looming health epidemic that might need to be set to rest, depending on whether the virus really does spread stateside.

Symptoms

Employers might assuage employees’ fears by getting them on board to help identify the illness. According to the CDC, the symptoms of the Ebola virus are:

  • Fever higher than 101.5 degrees Fahrenheit.
  • Severe headache.
  • Muscle pain.
  • Weakness.
  • Diarrhea.
  • Vomiting.
  • Abdominal (stomach) pain.
  • Unexplained hemorrhage (bleeding or bruising).

Encourage employees to volunteer if they or a family member has recently returned from one of the affected areas, noting that there will be no retaliation if they have, but that a medical screen may be necessary, Troutman suggested.

“More than anything, note that it is precautionary,” Troutman said.

One more word to the wise—HR at most organizations should help their workforces to “stay calm.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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