Using Reason in the Season of Ebola

There is a joke going around in a number of different circles that goes like this: “Have your heard the joke about Ebola? Well, you probably won’t get it.” Some people get the joke and others don’t, but the point is that most people in all likelihood won’t get Ebola either, at least not in most areas of the world outside of Africa, and even there it is limited to a few countries. Yet people are concerned. Some people have expressed reservations about traveling through Dallas or Atlanta, where patients who contracted the disease in West Africa have been brought to be treated. So how do you as an employer deal with concerns your employees may have?

Reason is Important

The first thing to do is help people realize that there is no chance of catching Ebola unless they have direct physical contact with an infected person. According to the Centers for Disease Control (CDC):

“…the virus can be spread to others through direct contact (through broken skin or mucous membranes in, for example, the eyes, nose, or mouth) with:

• blood or body fluids (including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen) of a person who is sick with Ebola
• objects (like needles and syringes) that have been contaminated with the virus
• infected fruit bats or primates (apes and monkeys)

Ebola is not spread through the air, by water, or in general, by food.”

For the vast majority of employees in the most situations, this is just not going to occur. The chances of catching the flu are much greater. Thousands of people die each year due to the flu, yet people resist taking flu shots and still come to work with the flu.

Your first line of defense for anything like this is a good illness policy that encourages people NOT to come to work when they are ill. Yes, some slackers may take advantage of this, but that’s better than running the risk of getting all of your productive workers sick. So, encourage people to stay home when they are ill. If they can work remotely and feel up to it, then you can let them do so, but I would not push them. There are some issues with the FLSA when people work remotely—more on that in a minute.

Important Laws

There are three major laws that come into play when discussing Ebola or any other transmittable disease in the workplace. The first of these is OSHA, whose General Duty clause requires that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

If you had put a pandemic disease policy into place when the Avian Flu was a threat, then that guidance is still applicable.

Other laws that may have an impact on the situation are the following:

• Americans with Disabilities Act (ADA): According to the law firm Littler, “employers may make inquiries into medical conditions only where they are job related and consistent with business necessity. Because there are not international travel restrictions and because the risk of transmission is very low, requiring a medical examination for returning travelers would likely not be considered a necessity.” The law firm Polsinelli says that treating people who may have been associated with an infected person may violate the ADA provisions on “associational” discrimination.
• Title VII of the Civil Rights Act: The law firm Polsinelli states, “Inquiries by employers of their employees regarding travel history, family origins, and risk for contracting Ebola or other pandemic diseases or illnesses can also implicate concerns under Title VII of the Civil Rights Act (“Title VII”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA”). Title VII can be implicated if employers treat employees differently just because they are from an affected foreign nation. Health screenings often seek family health history information, which may violate GINA.”
• The Fair Labor Standards Act: Having people take time away from work due to illness or potential illness can raise some issues if the person continues to work remotely. If the person is an exempt employee and she continues to work, she is due her entire week’s salary. If another employee is non-exempt and he continues to work remotely, then you need to ensure that you are properly tracking his time and paying him for that time. Employees may be eligible for FMLA time for treatment, which can include monitoring to determine whether or not they have contracted a disease, and providing care to family members who are ill.

Reason and Education

The simplest solution for the majority of employers outside of medical facilities is to use common sense (which is not always that common), and follow the guidance and advice provided by the CDC. Education is ALWAYS the best defense against irrational fears. If you must, have a meeting with employees and present them with the evidence that the CDC makes available to us. You can find extensive information on Ebola at the CDC website. Now quit worrying and get back to work. Encourage your employees to use reason in this season of irrational fears.