A series of questions and answers on Ebola for employers.

1. Ebola for Employers — Frequently Asked Questions
October 16, 2014
Thomas Benjamin Huggett
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1. How is Ebola transmitted?
A. According to the Centers for Disease Control (CDC), Ebola is not transmitted by
casual contact. Ebola is transmitted through direct contact with a sick person’s
bodily fluids, the most infectious being blood, feces and vomit.
Unlike a cold or the flu, Ebola cannot be spread until an infected person is sick
and showing signs and symptoms.
Transmission of Ebola from contact with objects and surfaces is only known to
occur with a significant amount of bodily fluids, which remain wet (drying out kills
the virus), and are then placed in the mouth, eyes, mucous membranes, or an
open cut.
2. What are the symptoms of Ebola?
A. Ebola symptoms: high fever, severe headache, muscle pain, vomiting, diarrhea,
stomach pain, or unexplained bleeding or bruising. These are symptoms
common to many illnesses and do not necessarily mean the average person has
Ebola. If a person has been exposed to someone with Ebola they should report
these symptoms to the public health department.
3. Is there a test for Ebola?
A. There is not a reliable blood test for Ebola prior to development of the illness and
its visible symptoms.

2. 4. Is there a preventative vaccination for the Ebola virus?
A. There is presently no vaccination for the Ebola virus.
5. Is travel to West Africa prohibited?
A. The CDC updated its travel health notices to include a Warning Level 3
categorization for Guinea, Liberia and Sierra Leone because of the
unprecedented outbreaks of Ebola in those countries. This warning level
recommends avoiding all non-essential travel to these countries. Essential travel
is defined as humanitarian aid work. All other travel is considered non-essential.
6. Can employers refuse to allow employees to travel?
A. No. Employers cannot prohibit otherwise lawful conduct when an employee is off
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duty.
7. Can an employer require a medical examination for an employee who has
traveled to an area with an Ebola outbreak before they return to work?
A. Generally, no. Under the Americans with Disabilities Act (ADA), employers can
require a medical evaluation only if it is justified by business necessity. In this
context, the ADA permits an employer to request medical information or order a
medical examination when the employer has a reasonable belief, based on
objective evidence, that an employee will pose a “direct threat” because of a
medical condition. The Equal Employment Opportunity Commission's Pandemic
Guidance states that an employer must take direction from the CDC or state/local
public health authorities in determining whether an illness is a direct threat, and
cannot make that assessment “on subjective perceptions . . . [or] irrational fears.”
The ADA standard is probably not met in most workplaces at this point in time.

3. Direct care healthcare employers may be able to meet this standard depending
on the nature of the travel and exposure during the travel. Review of the
infection control program in place for these employers should consider this
element.
The CDC has recommended that individuals who do not exhibit any symptoms
and who have had no known exposure self-monitor for symptoms for a 21-day
period after leaving an outbreak area. Employers may encourage employees to
engage in this monitoring on their own.
8. Can employers impose a 21-day quarantine for employees returning from
travel to West Africa so that they do not come into the workplace for that
period?
A. There is no direct legal prohibition on imposing a quarantine. This action does,
however, raise a number of potential legal concerns under medical privacy laws,
disability discrimination laws, state wage and hour laws, as well as potential race
and national origin discrimination claims. It must be noted in this regard that the
CDC has advised those traveling that when they return they can continue normal
activities, including going to work. If an employer is going to impose a quarantine
period, employers should ensure that no adverse employment action is taken.
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4. 9. What should employers do with co-workers who are nervous because of
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travel?
A. Employers should educate their employees on the methods of transmission of
Ebola, explain that transmission risk is very low, assure them that the situation is
being monitored, and emphasize good personal hygiene practices.
Employers are responsible for the conduct of their managers and employees and
must ensure they do not discriminate against employees who are African or who
have visited West Africa. Employers must also follow all medical privacy
considerations related to any sick or ill employee.
10. Does the Occupational Safety and Health Administration (OSHA) or its
state plan counterparts require employers to have an Ebola policy?
A. OSHA’s Bloodborne Pathogens (BBP) standard requires employers to have a
program, protections and training for employees who are occupationally exposed
to blood or specific bodily fluids. This standard extends to cleaning up blood in
the workplace. All employers with a BBP program should review their BBP
program for any issues arising specifically from Ebola that are not already
included in the program.
With respect to employees in California, the Division of Occupational Safety and
Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard has
provisions that require protection of employees from infectious diseases
transmitted by inhaling air that contains viruses (including Ebola), bacteria or
other disease-causing organisms. The ATD standard is limited to specific
healthcare providers but does provide a potential model for other locations.
For direct care healthcare employers, the federal Department of Health and
Human Services and CDC have issued a Health Care Facility Preparedness
Checklist for Ebola Virus Disease that should be followed.

5. 11. May an employee refuse to perform his or her job based on concerns about
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Ebola?
A. Under the Occupational Safety and Health (OSH) Act, employees may refuse to
work only where there is an objectively “reasonable belief that there is imminent
death or serious injury.” Refusing to work without such an objective belief may
result in disciplinary action by the employer. Given the current isolated nature of
employees who come in contact with Ebola patients, this standard is unlikely to
be satisfied absent particular factual circumstances. However, given the level of
public interest and concern, extreme care should be taken to avoid adverse
employment actions at this time due to a refusal to work. Use of counseling,
education and other available managerial skills are appropriate to avoid
confrontations and legal challenges.
Littler Mendelson, P.C.’s Workplace Health and Safety Practice focuses on advising
employers on a daily basis. If you have questions or need further information please
contact:
Thomas Benjamin “Ben” Huggett
267.402.3035
tbhuggett@littler.com
This document is not a do-it-yourself guide to resolving employment disputes or handling
employment litigation, nor is it a substitute for experienced legal counsel. This document does
not provide legal advice or attempt to address the numerous factual issues that inevitably arise
in any employment-related matter. Further, this document does not purport to provide medical
advice or counsel.