The World Health Organization (WHO) has declared the current Ebola outbreak in West Africa an international health emergency. The threat of an Ebola outbreak in the US remains low, but employers must consider workplace preparedness and safety issues now so they are prepared for any possible outcome. Employers should also be prepared to answer employee questions about workplace safety, sick leave and leaves of absence, vacation and business travel, and other employment issues. Practical Law reached out to Maria Greco Danaher of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. for her thoughts on Ebola issues in the workplace.

Maria is a shareholder in Ogletree, Deakins, Nash, Smoak & Stewart, P.C.'s Pittsburgh, Pennsylvania office. Maria represents management in labor relations and employment litigation, and in training, counseling and advising human resource departments and corporate management. Maria writes regularly for HR News, a monthly publication of the Society for Human Resource Management, and is a regular contributor to the Allegheny County Bar Association's Lawyer's Journal, in Pittsburgh, Pennsylvania.

As employers have found through past health-related issues including, most recently, H1N1, education is the key to dealing effectively with questions as they arise. Knowing the facts, understanding the legal ramifications and preparing for potential safety issues help lower the risk that decision-makers act on emotions or on partial information. A fully informed workforce is a workforce focused on moving forward safely and productively.

There is very little difference in the overall preparedness. Creating a response team, making employees aware of the facts related to the spread of the disease and making information available (including CDC notices and guidelines, and company rules regarding absences and medical leaves for actual illness) can raise the comfort level of the workforce.

The workplace issues related to the current Ebola virus epidemic are similar to those in any health-related emergency and cover the gamut of employment laws, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSH Act), the Fair Labor Standards Act (FLSA), the National Labor Relations Act (NLRA) and federal and state anti-discrimination laws.

To date, the employees at highest risk are healthcare workers who are involved directly in the care of individuals suffering from the Ebola virus, whether in the US or in other countries. In addition, employees who travel to affected countries in West Africa and who are exposed to those suffering from the virus either by caring for them, educating them or living with them are at higher than normal risk.

The Occupational Health and Safety Administration (OSHA) has issued general guidance that includes specific information for workers by job type, including airline and other travel industry personnel, mortuary and death care workers, laboratory workers, borders and customs workers, and emergency responders. The guidance includes actions that workers should take if they believe they have been exposed to the Ebola virus. It also spells out the rights that workers have to information and training related to potential exposure to the virus.

One way to minimize the risk of exposure to Ebola is to ask employees to refrain from travel to areas the CDC and the WHO have identified as high-risk. As of this writing, the CDC has issued a Level 3 Warning travel notice for US citizens to avoid nonessential travel to Guinea, Liberia and Sierra Leone, and a Level 2 Alert travel notice for the Democratic Republic of the Congo. The CDC no longer has a travel advisory in effect for Nigeria, based on the fact that the WHO declared on October 20, 2014 that the transmission of the Ebola virus in Nigeria has been halted.

In addition to travel advisories, most employers have implemented and enforced basic personal hygiene protocols, including hand washing and use of hand sanitizers, asking symptomatic employees to seek medical attention and allowing work from home under certain circumstances.

The ADA prohibits discrimination based on an employee's disability or perceived disability, which ultimately could include extended health effects of the Ebola virus. The ADA also regulates when an employer may make medical inquiries of an employee and when an employer may require a medical examination.

While an employer may ask an employee whether that person has traveled to an affected country in West Africa and whether he has been exposed to the Ebola virus, an employer cannot ask an employee to undergo a medical examination or exclude the employee from the workplace based simply on a suspicion (or fear) that the individual ultimately may develop the virus. Nor can an employer request a medical examination based on an employee's national origin, such as individuals from affected West African countries. Instead, employers must base these requests on an "individualized assessment" of the employee's current situation.

An individualized inquiry regarding the risk that an infected person may pose must include:

In 2009, the Equal Employment Opportunity Commission (EEOC) applied these factors in its guidance on how to deal with the H1N1 pandemic and included the limited circumstances under which an employer may request a medical examination. Though Ebola is very different from H1N1 (including the fact that Ebola has not yet been declared a pandemic), much of the EEOC's earlier guidance for H1N1 likely is applicable to dealing with concerns of Ebola infections.

General CDC guidance for individuals who have traveled to West Africa is that they monitor themselves for signs and symptoms of an Ebola infection for 21 days, including by taking their own temperature twice each day. However, the CDC states that "[d]uring the time that you are watching for signs and symptoms, you can continue your normal activities, including going to work."

While the CDC still has not changed that advice, on October 27, 2014, the CDC implemented a new program by which federal and state health authorities monitor all returning travelers from the affected West African countries for a 21-day period. These travelers are provided kits from the CDC upon arrival to the US that contain a thermometer, education materials, a symptom log and health authority contact information, and must to report relevant information daily to state and local authorities. Should a person develop symptoms, he will be identified, isolated and directed to the appropriate medical treatment. More information on this program can be found on the CDC website (see Media Releases and Ebola Exposure).

The CDC also issued its Interim US Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure on the same date, which specifically indicates the increase of state and local public health authority in assuming responsibility for establishing regular communication with potentially exposed individuals. This includes checking daily to assess the presence of symptoms and fever, rather than relying solely on individuals to self monitor and report symptoms if they develop.

Despite of all of this advice, there currently is no support from the CDC for any employer to mandate a 21-day leave from work after possible exposure to the Ebola virus. However, some employers are requesting that such individuals stay home during the 21-day period and are treating the absence as paid leave.

Interestingly, Ohio has recently introduced legislation mandating paid sick leave for employees unable to work because of a quarantine or placement in medical isolation. The proposed bill would also prohibit employers from requiring quarantined employees to use PTO in place of the statutory paid leave. It is unclear what action will be taken on the bill, but its introduction may be of interest to employers deciding how to handle these types of absences.

Under the FLSA, an employer is only required to pay nonexempt employees for hours that the employees actually have worked. Therefore, if a facility closes for disinfection, the employer is not required to pay nonexempt employees if the employer is unable to provide work to those employees at an alternate location during that time. An exception to this situation applies to employees who receive fixed salaries for fluctuating workweeks, and who have agreed to work an unspecified number of hours for a specified salary. These employees must be paid a full weekly salary for any week in which any work was performed.

An employer must pay exempt employees' full salary if the worksite is closed for less than a full workweek. However, employers are permitted to have a policy that requires exempt employees to substitute accrued paid time off (PTO) for this time.

Under certain circumstances, the OSH Act may protect an employee from retaliation for refusing to perform work as directed. However, under the Act, an employee may only refuse an assignment that involves "a risk of death or serious physical harm," and only if:

While the OSH Act criteria set a high bar for refusal to work, a thorough review of the facts should be conducted before any disciplinary action is taken against an employee who refuses to work for fear of exposure to the Ebola virus. Employees in high-risk positions, such as the direct care of an Ebola patient, may be able to meet the criteria.

In a circumstance in which an employee who is not in a high-risk position refuses to work and the criteria are not met, disciplinary action may be imposed. However, before taking disciplinary action, employers should consider the level of possible risk that forms the basis of the employee's concern, and whether such concern could be allayed by reassigning the employee to other duties, allowing working from home or by making minor workforce changes to increase the confidence of employees regarding potential exposure.

Earlier this year, the US Supreme Court determined that an employer did not have to pay its unionized workers for time spent putting on and taking off personal protective equipment. A provision in the FLSA permits employers and unions to bargain over the compensability of time spent changing clothes and, in that case, the parties previously agreed that the time was not compensable. The plaintiffs sued for back pay, arguing that putting on and taking off PPE that the employer required them to wear was not "changing clothes." The Supreme Court focused on the fact that time spent putting on and taking off non-clothing items like ear plugs was minimal compared to other pieces of gear that the Court characterized as clothing. The Court held that, taken as a whole, the donning and doffing activities qualified as changing clothes, something the parties had agreed was not compensable under the FLSA.

Recent CDC guidance on the extensive PPE necessary for healthcare workers dealing with Ebola patients, including even more recent "tightened" guidance, consists of over 20 pages of instructions and advice for equipment that includes a face shield, helmet, respirator, gown and gloves. So, while employers might rely on the Supreme Court's decision to refuse to pay Ebola healthcare workers for donning and doffing PPE, the preparation necessary to care for an Ebola patient may be more than what can reasonably be characterized as "changing clothes" and a substantially different circumstance than was reviewed by the Supreme Court.

Before making a decision related to compensation for time spent putting on and taking off PPE necessary to care for Ebola patients, employers should become knowledgeable about all parts of the required PPE and the actual time workers spend to fully and safely don and doff the PPE and seek input from both human resources and legal personnel before refusing to pay for that time.

Yes. The obligation to bargain is grounded in the NLRA, which requires employers to bargain with unions about wages, hours and other terms and conditions of employment. Some subjects of bargaining are considered "mandatory," which means employers are required to bargain about those subjects if the union asks and can insist that the union bargain about those subjects until there is an agreement or the parties reach an impasse. Mandatory subjects include safety practices and the NLRB has held that required safety equipment is a mandatory subject of bargaining.

Michael Oliver Eckard of Ogletree's Atlanta office has developed a General Ebola Preparedness Plan for employers. The plan includes the following steps:

For more information on health and safety in the workplace, see Practice Note, Health and Safety in the Workplace: Overview and Standard Document, Health and Safety in the Workplace Policy. For more information on emergency planning, see Practice Note, Emergency and Business Continuity Planning.

For more information on employee leave, see Employee Leave Toolkit and Leave Laws: State Q&A Tool.