|Shannon D. Farmer|
With stories about Ebola splashed across headlines, employers may be concerned about protecting their employees and their workplaces from potential exposure. Although that's a laudable goal, employers need to ensure that their efforts don’t run afoul of relevant employment law considerations, including requirements under the Americans with Disabilities Act and the Family and Medical Leave Act.
In a Bloomberg BNA Q&A, attorney Shannon D. Farmer, a partner at Ballard Spahr LLP, addresses employment law implications employers should keep in mind when attempting to handle situations involving exposure or suspected exposure to Ebola.
BBNA: Could Ebola be considered a disability under the amended Americans with Disabilities Act?
Farmer: Typically, Ebola would not be considered a disability under the ADA. Temporary conditions, including illnesses like Ebola and the flu, even when serious, generally are not disabilities themselves because of their temporary nature. If long-term complications developed, they could rise to the level of a disability. Ebola will certainly be considered a serious health condition under the Family and Medical Leave Act. In addition, taking action against employees because of fear that Ebola or exposure to Ebola may render them unable to work could lead to a claim of "regarded as" discrimination under the ADA.
BBNA: What information can employers seek from employees they suspect may have been exposed to Ebola?
Farmer: If employers have a particularized reason to suspect exposure, they may have the right to make inquiries to determine if the employee poses a "direct threat" to the workplace. However, just the fact that the employee may be from West Africa or have family in West Africa is not enough. Employers who target employees based on their national origin face the risk of a discrimination claim under Title VII of the Civil Rights Act of 1964. If the employee is being monitored by public health officials for potential exposure and those health officials have not quarantined the employee, the employer likely would not have a basis to determine the employee is a direct threat and exclude the employee from the work place. If exposure is suspected and public health officials are not involved, employers should contact their local public health officials or the federal Center for Disease Control for guidance.
BBNA: Can employers perform any tests or medical examinations to determine if an employee has Ebola or is fit for work?
Farmer: If employers have a particularized reason to suspect exposure, they may require a medical examination, including taking the employee’s temperature, to determine if the employee is a "direct threat" to the workplace. However, employers should exercise caution because they need to have specific reasons for making that assessment. If the employee is being monitored by public health officials for potential exposure and those health officials have not quarantined the employee, the employer likely would not have a basis to determine the employee is a direct threat and seek its own medical examination. If exposure is suspected and public health officials are not involved, the employer should contact their local public health officials or the federal Center for Disease Control for guidance.
BBNA: Can employers require employees returning from affected areas to stay home or otherwise impose some type of quarantine in the workplace?
Farmer: Under the current level of threat determined by the Centers for Disease Control and Prevention, an employer cannot exclude an employee from the workplace simply because the employee has been to an affected area. Any decision to remove the employee from the work place would have to be based on specific additional facts (see above). If public health officials have not quarantined an employee, an employer is rarely going to be in a position to determine the employee poses a direct threat.
BBNA: Could the association discrimination provision of the ADA be implicated in situations where an employee’s family member has traveled to affected areas?
Farmer: Employers who exclude employees from the work place because their family members have Ebola or have traveled to affected [areas] could run afoul of the association discrimination provisions of the ADA. In addition, it may make employers liable for national origin discrimination claims under Title VII because of the localized nature of the Ebola outbreak in West Africa.
BBNA: What should employers do to accommodate employees who may be required to stay home under federal or state quarantine programs?
Farmer: Employees who have been subject to quarantine under federal or state programs and who develop the illness will be entitled to leave under the FMLA if they otherwise meet the eligibility requirements. They may also be entitled to leave under state or local leave laws. Employees who are asymptomatic but subject to quarantine may not be eligible for leave under the FMLA because they do not have a "serious health condition" and are likely not individuals with disabilities under the ADA so leave is likely not required under federal law. State and local leave laws could provide additional protections and a few states require employers to restore employees to their positions after a government quarantine. Even where job restoration is not required by state or federal law, however, most employers will, as a matter of policy, allow the employees to take the necessary leave on either a paid or unpaid basis rather than terminate the employee based on the government quarantine.
BBNA: What other ADA implications must employers keep in mind when handling situations involving employees and potential Ebola exposure?
Farmer: Employers must keep employee medical information in separate, confidential files and not share that information. That means that employers cannot share that information with supervisors or co-workers who may be concerned to assuage those fears.
Shannon D. Farmer is a partner at Ballard Spahr LLP. She represents public and private employers in labor and employment matters. Ms. Farmer conducts collective bargaining negotiations and interest arbitrations, defends employers against civil rights, wage and hour, and other types of employment lawsuits, and advises and trains clients on employment policies and other human resources needs.
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