Ebola and the Workplace: Frequently Asked Questions

After two Dallas nurses have contracted Ebola and the deadly disease continues to spread in West Africa, employers increasingly face the unique challenge of maintaining a safe workplace while avoiding potential legal landmines.  To assist our clients with this predicament, we would like to answer some commonly-asked questions concerning general employment laws that may be implicated: Can I ask employees about potential exposure to the Ebola virus? The Americans with Disabilities Act (ADA) limits an employer’s ability to ask medically-related questions, even when dealing with something as critical as Ebola.  Questions about diseases or exposure to disease are disability-related, and the ADA requires a “direct threat” to the health of the employee or others before an employer may make a disability-related inquiry that is not job-related or consistent with business necessity.  Certainly, a potential exposure to Ebola could constitute a direct threat, but employers must act on actual, objective evidence instead of unlawful stereotypes or generalizations.  If it is ultimately determined that an employee’s actual or potential exposure poses a threat, then employers may require the employee to stay home and obtain medical clearance before returning to work.  The CDC has published monitoring guidelines for individuals who have traveled to a country experiencing an Ebola outbreak or otherwise have been potentially exposed to the disease. Can I ask employees about travel to high-risk areas such as West Africa? Questions about travel are not disability-related, and while the ADA does not restrict inquiries about employee travel to gauge potential exposure and risks, employers must be careful not to discriminate on the basis of race or national origin.  For example, while an employer may inquire about recent travel of all employees to identify any who might have recently traveled to a high-exposure area (such as West Africa), it should not limit those inquiries solely to individuals of West African descent.  Can I require mandatory fever screenings in the workplace? Screening employees for fevers or other symptoms of Ebola presents an additional challenge under the ADA.  The EEOC considers fever screening a “medical examination,” and does not permit mandatory screenings unless they are “job related and consistent with business necessity” or justified by information suggesting that the employee poses a direct threat.  Thus, whether mandatory fever screenings will pass muster depends on the specific facts, unique industry circumstances, and the job responsibilities of the employees at issue.  For example, an employer would likely be unable to require fever screenings of an employee who has returned from traveling abroad in a low-risk area, as there would be no direct threat. On the other hand, if an employee has recently traveled to a country affected by the disease, an employer may lawfully require the employee to refrain from reporting to work until receiving medical clearance. What may I do with employees who refuse to report to work? While employees are justifiably concerned about potential exposure to the Ebola virus, it is critical for employers to assist employees in understanding the facts without falling susceptible to panic.  Most importantly, employers should educate concerned workers about how Ebola is transmitted and what the symptoms are, emphasizing the fact that most office environments are safe, given the CDC’s guidance that Ebola is unlikely to spread through casual contact.  While employers may elect to allow concerned employees to work from home, there is no legal obligation to make such an accommodation.  In other words, employers may require employees to report for work and perform their jobs despite a generalized, unsubstantiated fear permeating some workplaces. The employment issues related to the recent U.S. Ebola exposure are complex, and there are few straightforward answers.  Nevertheless, employers should take the following steps to ensure that they base Ebola-related employment decisions on factual information rather than fear: Remain updated as to the latest CDC and state or local Ebola-related health assessments;Educate concerned workers about the symptoms and transmission of Ebola, specifically addressing employee concerns about workplace safety; andEstablish protocol requiring employees to immediately report any potential symptoms of Ebola or actual exposure to both the employer and appropriate health authorities.— Marc Klein and Barbara-Ellen Gaffney, Thompson & Knight