Employers and Ebola

Guidance Now and Later

In 2009, the Equal Employment Opportunity Commission (EEOC) issued instructive guidance on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” designed to set forth rules for employers dealing with the epidemics posed by SARS, seasonal influenza and the H1N1 virus.

Most experts believe that if Ebola breaks out on a larger scale in the U.S. and eventually rises to the level of a pandemic and concomitant “direct threat” status, it clearly will fall within the EEOC's guidance and justify an employer's need to engage in disability-related inquiries and medical examinations. Most public health experts consider that scenario highly unlikely, however.

As of now, employers should follow the EEOC's preparedness guidance and monitor the Center for Disease Control and Prevention (CDC) Ebola updates. See http://bit.ly/1tHV6Tl. If the CDC were ever to declare a pandemic, the answers to the four questions posed above would clearly be yes.

For the time being, employers should avoid broad-stroke actions. They would be prudent to limit medical inquiries and examinations narrowly to employees arriving back from visits to affected areas in West Africa, and to employees who have otherwise been directly exposed to Ebola (e.g., medical workers, first responders, airline, mortuary and waste disposal employees), or been in close quarters with such an individual. In the interest of caution, and as a means of avoiding or limiting liability, employers may wish to consider paid leave and/or work-at-home restrictions for such high-risk employees for the duration of the reported 21-day Ebola incubation period. However, the situation is fluid and restrictions may expand. As the EEOC's guidance provides:

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

In the near term, most experts also believe that employers are well served to help their employees remain calm and avoid hysteria. This may be accomplished, in part, by providing educational material about Ebola, including the limited ways of contracting the disease, and encouraging employees to get flu shots and engage in regular hand-washing. The CDC's Ebola page is one such useful resource.

Workers' Compensation

Assuming one or more of a company's workers become ill, are those workers entitled to workers' compensation benefits? The answer depends on how the worker became ill, and the nature of the illness. Virtually every state's workers' compensation statute provides that an employee is entitled to benefits for what is known as an “occupational disease.” To constitute an occupational disease, two conditions must be met: 1) the disease must be due to causes and conditions that are characteristic of and peculiar to a particular trade, occupation or employment; and 2) the disease cannot be an ordinary disease of life, to which the general public is equally exposed outside of employment.

While occupational diseases are covered and ordinary diseases generally are not, there are circumstances where the latter may be covered if a direct causal connection to the workplace can be established. Because Ebola is generally contracted only through contact with an infected person's bodily fluids, the question of whether a worker contracted the disease in the course of employment is likely to be clearer than with other diseases.

Many workers' compensation insurance policies, particularly policies providing excess coverage, provide insurance coverage beyond an initial self-insured retention for each accident and/or each employee, after which unlimited coverage is provided up until the applicable statutory caps. Thus, if an illness is deemed to constitute a “disease,” most policies would apply a separate retention for each individual employee asserting a “disease claim.”

However, if an illness outbreak is triggered by a causal event at the workplace and directly flows from the work being performed, it may be argued that the resulting disease has been produced by an “accident” causing bodily injury, as opposed to a disease. In this case, a business would only be required to pay one self-insured retention, no matter how many employees were actually exposed to contagion or contaminant.

Watchful Waiting

For the time being, most U.S. employers' response to the risk of Ebola outbreaks in the workplace will probably be limited to ensuring that they know where to find essential information should the disease spread. More broadly, businesses should analyze their insurance portfolios to determine whether they are adequately covered for risks of loss or liability. That includes a review of workers' compensation law in the states ' and countries ' in which they operate.

Bennett Pine is a shareholder in both the Newark, NJ, and New York offices of Anderson Kill. Diana Shafter Gliedman is a shareholder resident in the New York office. This article also appeared in the New Jersey Law Journal, an ALM sister publication of this newsletter.

While relatively few U.S. or global businesses are directly affected by the outbreak of Ebola in West Africa, or by the handful of cases in the U.S., organizations of all sizes are well-advised to do some contingency planning should the disease spread to other regions of the globe, including in the U.S. While examining appropriate control strategies to be followed in the workplace, U.S. employers must also take into account legal limitations in employment laws regarding employee privacy and attendant matters that may prohibit certain inquiries, medical exams and other employer actions. They should also make sure that they remain abreast of workers' compensation law in the states in which they operate.

With respect to workplace precautions, common questions include whether an employer may: 1) Request health information from an employee who has traveled to West Africa and may be infected or exposed; 2) Take the temperature of an employee; 3) Require an employee to stay home from work; and 4) Require an employee to provide a doctor's note certifying fitness to return to work.

As a general proposition, other than permissible preemployment physical exams, the federal Americans with Disabilities Act (ADA) prohibits an employer from making disability-related inquiries or requiring employees to undergo medical examinations once they have been hired. A significant exception to this prohibition on employers exists where there is a “direct threat” of an employee posing “a significant risk of substantial harm to the health and safety” of the individual or others, which cannot be eliminated or reduced by reasonable accommodation.

Guidance Now and Later

In 2009, the Equal Employment Opportunity Commission (EEOC) issued instructive guidance on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” designed to set forth rules for employers dealing with the epidemics posed by SARS, seasonal influenza and the H1N1 virus.

Most experts believe that if Ebola breaks out on a larger scale in the U.S. and eventually rises to the level of a pandemic and concomitant “direct threat” status, it clearly will fall within the EEOC's guidance and justify an employer's need to engage in disability-related inquiries and medical examinations. Most public health experts consider that scenario highly unlikely, however.

As of now, employers should follow the EEOC's preparedness guidance and monitor the Center for Disease Control and Prevention (CDC) Ebola updates. See http://bit.ly/1tHV6Tl. If the CDC were ever to declare a pandemic, the answers to the four questions posed above would clearly be yes.

For the time being, employers should avoid broad-stroke actions. They would be prudent to limit medical inquiries and examinations narrowly to employees arriving back from visits to affected areas in West Africa, and to employees who have otherwise been directly exposed to Ebola (e.g., medical workers, first responders, airline, mortuary and waste disposal employees), or been in close quarters with such an individual. In the interest of caution, and as a means of avoiding or limiting liability, employers may wish to consider paid leave and/or work-at-home restrictions for such high-risk employees for the duration of the reported 21-day Ebola incubation period. However, the situation is fluid and restrictions may expand. As the EEOC's guidance provides:

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

In the near term, most experts also believe that employers are well served to help their employees remain calm and avoid hysteria. This may be accomplished, in part, by providing educational material about Ebola, including the limited ways of contracting the disease, and encouraging employees to get flu shots and engage in regular hand-washing. The CDC's Ebola page is one such useful resource.

Workers' Compensation

Assuming one or more of a company's workers become ill, are those workers entitled to workers' compensation benefits? The answer depends on how the worker became ill, and the nature of the illness. Virtually every state's workers' compensation statute provides that an employee is entitled to benefits for what is known as an “occupational disease.” To constitute an occupational disease, two conditions must be met: 1) the disease must be due to causes and conditions that are characteristic of and peculiar to a particular trade, occupation or employment; and 2) the disease cannot be an ordinary disease of life, to which the general public is equally exposed outside of employment.

While occupational diseases are covered and ordinary diseases generally are not, there are circumstances where the latter may be covered if a direct causal connection to the workplace can be established. Because Ebola is generally contracted only through contact with an infected person's bodily fluids, the question of whether a worker contracted the disease in the course of employment is likely to be clearer than with other diseases.

Many workers' compensation insurance policies, particularly policies providing excess coverage, provide insurance coverage beyond an initial self-insured retention for each accident and/or each employee, after which unlimited coverage is provided up until the applicable statutory caps. Thus, if an illness is deemed to constitute a “disease,” most policies would apply a separate retention for each individual employee asserting a “disease claim.”

However, if an illness outbreak is triggered by a causal event at the workplace and directly flows from the work being performed, it may be argued that the resulting disease has been produced by an “accident” causing bodily injury, as opposed to a disease. In this case, a business would only be required to pay one self-insured retention, no matter how many employees were actually exposed to contagion or contaminant.

Watchful Waiting

For the time being, most U.S. employers' response to the risk of Ebola outbreaks in the workplace will probably be limited to ensuring that they know where to find essential information should the disease spread. More broadly, businesses should analyze their insurance portfolios to determine whether they are adequately covered for risks of loss or liability. That includes a review of workers' compensation law in the states ' and countries ' in which they operate.

Bennett Pine is a shareholder in both the Newark, NJ, and New York offices of Anderson Kill. Diana Shafter Gliedman is a shareholder resident in the New York office. This article also appeared in the New Jersey Law Journal, an ALM sister publication of this newsletter.