Concerns associated with the spread of Ebola are growing. The World Health Organization has declared the virus an “international health emergency” and the Centers for Disease Control confirmed that the U.S. has now experienced several cases of the virus. Although it’s still too early to deem this a major health crisis in the United States, concerns are growing and employers need to be prepared to address questions about the transmission and handling of Ebola.Though the media attention surrounding Ebola continues to grow, health authorities are still advising that the risk of actually transmitting the disease is low, and therefore, employers should be mindful not to overreact and risk running afoul of discrimination laws that can come into play when dealing with infectious diseases. Of particular note, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against people with disabilities. Given its severity, and the broad interpretation of “disability,” Ebola arguably qualifies as a disability under the ADA. Though the ADA restricts employers from making disability-related inquiries, an employer is allowed to conduct a medical examination if they have a reasonable belief that a particular employee’s disability poses a direct threat to the workplace. A direct threat is defined as significant risk of substantial harm to the health or safety of that employee or others in the workplace and such risk cannot be eliminated or reduced by a reasonable accommodation.
The direct threat exception cannot be based on fears or misconceptions, but rather, the employer must take into consideration current medical knowledge from health authorities and objective evidence. For example, an employer could not require a medical examination simply because one of its employees recently traveled to West Africa. That could open an employer up to a so-called “regarded as” discrimination claim under the ADA, or a potential national origin discrimination claim.
Though the EEOC has not issued anything specific to Ebola, the agency did issue guidance during the H1N1 pandemic in 2009 that employers should note in addressing Ebola. The guidance provides useful information if Ebola spreads to a pandemic similar to H1N1, including:
- If an employee shows Ebola-like symptoms, employers may advise such employee to go home;
- Employers may ask employees if they are experiencing Ebola-like symptoms, yet all information must be kept confidential;
- Employers may ask whether employees have traveled to an area where Ebola has been present, such as West Africa;
- Employers can encourage employees to telework; and
- Employers may inquire into why an employee has been absent from work if the employer suspects it was for a medical reason.
Ultimately, if current fears of Ebola expand into a broader reality in the United States, employers must be equipped with various actions they can take to provide a safe working environment. If employers are considering conducting medical examinations or making employment decisions based on a suspected case of Ebola, employers should first consider consulting with an attorney as well as engaging with a medical provider familiar with this disease.
Nick Johnson is an attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at [email protected].