The concern about Ebola has taken a new turn. Employers and their lawyers are beginning to consider the legal issues that might arise when an employee is exposed to a dangerous virus like Ebola. Attorney David Scher discusses the problem and offers some answers.
One question to be answered is whether possible exposure to a deadly virus like Ebola would create an exception to the federal law that prohibits an employer from asking employees about their medical issues. Scher notes that the law doesn’t prohibit asking, per se, but only asking as a basis for making employment decisions.
However, as Scher explains, the law does not prohibit an employer from asking the health questions if, for example, the employer wants to accommodate an employee who has a disability. And the law does not prohibit an employer from asking the health questions if the purpose is to learn about potential problems so as to protect the health and safety of everyone in the workplace.
“I think the advice that’s important to give to employers and their general counsel is, make sure you have a written policy about this and that you implement that policy after careful review.” Employers who take this precaution should be fine, Scher opines.
A special group of employers are entities like hospitals, airports, and firefighters, whose employees are more likely than others to come into contact with dangerous viruses or people infected with those viruses. If an employee refuses to deal with contaminated people or equipment, what recourse does an employer have? Scher says that this is a trickier question. The employer can require employees to do their jobs; the question becomes whether some accommodation is required.
On the one hand, a hospital (for example) may have a tough time if it fires an employee who does not want to handle extremely dangerous contaminants. On the other hand, taking a job in a hospital means exposing oneself to dangerous diseases and substances. A tougher question is the extent of an employer’s liability when an employee does get injured as a result of exposure to dangerous diseases. Scher says that there is presently no answer to that liability question.
Another question is whether an employer can make an employee stay home for a twenty-one-day incubation period. Scher says the answer is, absolutely yes. The nurse in Maine protested that request by the CDC. Scher says the employer is on solid ground, especially if the employee is paid and accommodated as much as possible, such as by letting the employee work from home. In fact, not imposing a quarantine like this might cause other problems in the workplace.
David L. Scher is a principal in The Employment Law Group. Mr. Scher focuses his practice on qui tam, whistleblower retaliation, and discrimination cases in D.C., Maryland, California, and nationally. He represents federal and corporate whistleblowers who have reported their employer’s wrongdoing. Mr. Scher is a frequent news commentator and has appeared on local news WUSA9 (Montgomery county, Maryland), KSBW8 (Salinas, Monterey, Santa Cruz), as well as ABC World News and on Hearst Television, Inc. stations across the country. Additionally, Mr. Scher has been interviewed by Forbes.com, Politico, and the Washington Post on topics such as employment discrimination, whistleblower retaliation, free speech issues and related employment matters. The Legal Broadcast Network is a featured network of the Sequence Media Group.