In the wake of the world’s largest Ebola Virus Disease (EVD) outbreak in history, Americans have been inundated with media hype surrounding the disease, and the government and employers’ perceived inadequacy in their response. While the threat of a widespread EVD outbreak in the United States is minimal, healthcare providers in particular, but also airlines and travel-related companies, mortuary employers and laboratories should all take steps to educate and protect their workforce. As experience has taught, educating and openly communicating with employees helps reduce truancy, limits discriminatory activity, and ultimately creates a healthier and safer workforce. Still, many employers are unsure what they can and cannot require of their employees. Below, we touch on some of the most pertinent topics that employers in these critical sectors may want to consider as they confront employees and customer/patient pools concerned about EVD.
First and foremost, employers have a duty under the federal Occupational Safety & Health Act (Act) and similar state laws to provide a safe and healthy workplace free from recognized hazards that may cause injury or death. Because exposure to a single viral particle can result in development of EVD, and because contraction of EVD has had a very high fatality rate worldwide, the Occupational Safety & Health Administration (OSHA) is encouraging employers to protect their workers while on the job by following recommendations published by theCenters for Disease Control and Prevention, the National Institute for Occupational Safety and Health, and the World Health Organization. Depending on employees’ risk of exposure to EVD based on their industry, OSHA may require development of a plan (typically called an “OSHA Response Plan”) with specific procedures to protect employees against infection. Furthermore, governors and state and local health agencies may have stricter requirements or provide special guidance for employers to protect employees from infection which should be reviewed prior to implementing an OSHA Response Plan. Counsel should be consulted to ensure all applicable requirements are covered by any plan prior to implementation.
Another issue many employers may grapple with is whether to place an employee either returning from West Africa, or who was exposed to EVD, on mandatory leave for the 21-day incubation period of EVD to protect other workers from potential infection. Legal guidance should be sought before implementing such measures and employers. There are a number of considerations employers will need to consider before implementing any such policy including: whether or not the leave should be paid; how to appropriately identify workers subject to a mandatory leave; how to effectively and appropriately communicate such a policy to the workforce to avoid possible national origin or disability discrimination issues; and whether or not any or all of the leave is covered by the employer’s short term disability or workers compensation insurance, or is protected under state and federal family and medical leave laws. Additionally, employers will want to review their existing internal leave policies and procedures to ensure they are providing employees with the leave to which they are entitled under applicable state and local sick and vacation leave laws.
Finally, whether or not employers have employees represented by labor unions there are labor-related concerns that employers should consider in implementing new policies and communicating protocol with the workforce. Employers with represented employees may have an obligation to communicate and meet with union representatives before implementing new employee safety protocols. Employers who are party to union contracts may have a contractual obligation to consult with a union before implementing new safety procedures. Unions also may be entitled to request information about their members’ safety in the workplace, training protocols affecting their members and injury/illness reports.
Even in the absence of a labor union, employees who engage in concerted activity are protected under the federal National Labor Relations Act (“NLRA”). For instance, if a group of employees act in concert decide not to come to work because of risks of exposure from EVD, may be engaging in “protected concerted activity.” An employer who disciplines such employees may be in violation of the NLRA.
Additional employment-related issues will inevitably arise as more citizens are exposed to EVD either by traveling to West Africa or by treating infected patients in the United States or elsewhere without proper protection. Employers should be proactive in creating appropriate policies to protect their workforce and to confront these issues. We have additional resources available to assist employers in identifying unique issues they face in their industry – whether it be healthcare, travel, emergency response, laboratory or others – that will assist in effectively navigating the legal issues surrounding EVD preparedness. For health-sensitive industries, legal counsel should be consulted while preparing for employee training and implantation of any new policies, whether they are related to OSHA compliance, employee leave, or labor issues.
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