Everywhere you turn people are talking about the current Ebola outbreak in West Africa and the multiple infected individuals in the United States. As Ebola is a devastating disease with a high mortality rate, people are understandably concerned. As an employer, what should you do?
Under the Occupational Safety and Health Act, all employers are legally obligated to provide safe and healthy workplaces. Specifically, the “General Duty Clause” of the Act requires employers to protect employees against “recognized hazards” which may result in serious injury or death. If the Occupational Safety and Health Administration (OSHA) relies on information issued by the Center for Disease Control, the National Institute for Occupational Safety and Health, the World Health Organization, or other similar organizations to determine employees are reasonably likely to be exposed to the Ebola virus while working, OSHA will require the employer to have a plan with procedures to protect employees.
If your employees are reasonably likely to be exposed at the worksite (healthcare providers, emergency responders, transportation workers, etc.), your program should be based on a “hazard assessment” of potential exposure at the workplace. This may include conducting employee awareness training regarding Ebola, developing procedures requiring issuance of personal protective equipment (gloves, masks, etc.) to protect from transmission of the virus, developing procedures to report infection, or other measures as appropriate.
More likely, your workplace will not be of the type where exposure to Ebola is reasonably likely, and instead you will deal with a scenario where one of you employees visits West Africa or in some other way concerns you that they may have been unknowingly exposed to the Ebola virus. In these instances, the employee may be excluded from the workplace if they pose a direct threat to others that cannot be eliminated by a reasonable accommodation. To determine if this employee poses a direct threat to others, the assessment must be objective, based on current medical knowledge, and considers the duration of the risk, the nature and severity of the potential harm, the likelihood of the harm, and the imminence of the harm.
Next, if the employee does pose a direct threat to others, they must not be excluded from the workplace unless there is no reasonable accommodation that can eliminate or minimize the chances of transmission. Given the circumstances in which Ebola may be transmitted, through direct contact with infected individual’s blood or bodily fluids or objects contaminated with the virus (needles and syringes), there may be reasonable accommodations for certain employees based on their job duties. Working from home or allowing for leave may be the safest options but engaging in a conversation with this employee will be imperative. Depending on the circumstances alternative options may be available and simply participating in the conversation may be enough to defend against a potential lawsuit.
If you have any questions regarding eliminating employees from the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.