The legal issues in an Ebola scare

The Ebola outbreak has proven there is no shortage of legal workplace issues for employers and employees during a communicable disease scare. Amid all the fear and confusion are also questions of what responsibility employers owe to possibly infected employees and their co-workers, and what state and federal laws are at issue.

Even if a company doesn’t have an employee exposed to Ebola, or do business in a country where the disease is spreading, now is still a good time to institute a communicable-disease plan and prepare for possible legal issues, say two Nilan Johnson Lewis attorneys.

Veena Iyer and Elizabeth Winchell counsel clients on the importance of a policy. They say there are a host of legal issues that employers need to consider when instituting one.

Iyer is an employment law attorney. She said that she has received more calls from clients asking if they have a proper plan in place the longer the outbreak has stayed in the news. Food service, health care, education, transportation and global businesses are the industries with the most questions, she said. But the recent attention has moved the focus to a broader range of clients.

For the most part, she has been able to use a business’s existing human resources policies to tailor an appropriate response.

“Not only do you want to have a policy that deals with Ebola, but also something that will enable you to address much more common occurrences. Obviously, people have a better chance of getting the flu than Ebola. This is a good time to send out an email to remind people what is in place,” Iyer said.

She said the policy can be as simple as a message to employees that ‘if you are sick, stay home.’ It should also outline how to handle unconfirmed cases of an employee contracting a communicable disease and how to respond to a confirmed case.

She said one question that many employers haven’t considered is whether their short-term disability policy applies to someone who needs to be quarantined. And do employers need to keep an employee’s job open if the worker is quarantined?

Winchell is a health care attorney. She said one important thing for businesses to remember is that an outbreak doesn’t change the responsibilities an employer has to employees. In addition to properly responding to someone getting sick, businesses must mindful of applicable laws and guidelines.

There are limits on what employers can do when an employee has come in contact with the disease, or even may have come in contact, she said. If someone does get sick, there are only very specific and very rare instances when an employer could tell other workers. The key is to disseminate accurate information but be aware of where the line of personal privacy is. Failure to do so is risking a lawsuit, Winchell said.

The Americans with Disabilities Act could very likely apply to someone diagnosed with Ebola, or even someone who is perceived to have it. The ADA allows employers to ask workers who call in sick if they are experiencing fever and other Ebola symptoms. They can also ask where workers have traveled recently. But, companies can’t ask workers to stay home if they recently returned from a high-risk area.  Nor can business ask workers to undergo a medical exam unless they have strong evidence to support one.

Employers cannot target employees from West African countries, or those who recently traveled there. The Family and Medical Leave Act and the Minnesota Human Rights Act could also offer protections to those who get sick.

“The big thing for employers is continuing to keep private information private. You can’t relax that just because there is a lot of attention around Ebola right now,” she said. “There is considerably more fear right now than risk. The fear can be much more difficult to manage,” Winchell said.

For businesses that send employees to West Africa, there is a host of issues to consider. Many have canceled or scaled back travel because of the risk or instituted evacuation plans for employees should doing so become necessary. When employees return, their health should be monitored.

There are also questions of state law and policy with a communicable disease plan. The state of Minnesota recently imposed a 21-day confinement period for any medical worker returning to the state from West Africa who was potentially exposed to Ebola. Non-medical workers returning to Minnesota from the region must check in with public health workers twice a day and log their activities. Additionally, any quarantine would follow the procedures outlined in Minnesota law. State law allows for people to appeal a quarantine order, and health officials are required to use the “least restrictive” means possible to execute one. There is also an avenue for residents to recover lost wages during a health scare. But, in extreme cases, the state has the authority to send kids home from school and inspect private residences and health records.

Nilan Johnson Lewis attorneys aren’t the only ones taking a look at the legal issues surrounding an Ebola-like outbreak. Last week the American Bar Association’s Health Law Section hosted a webinar on the topic featuring public health officials and legal privacy experts. The law firm of Reed Smith in Washington, D.C., sent out a press release last month to announce it had formed a new “Global Ebola Task Force.”

“The situation has presented the opportunity to think about general preparedness in the event something like this were to happen,” Winchell said. “And for our clients that’s never a bad thing to do.”