I.
Introduction
By now, the worldwide health authorities and media have
publicized the Ebola hemorrhagic virus (EHV) (sometimes called Ebola Virus
Disease, or EVD) (the “virus” or “disease”) that has been reported throughout western
Africa. Although the United States
has only experienced several cases of the virus, it is only a matter of time
before the disease surfaces in more cases throughout the country. Given high density areas of human contact
such as mass transportation systems, schools, hospitals and the workplace, the
potential is great for this widely circulating virus to spread from
human-to-human in a short period of time.
II.
Background
A.
What is Ebola?
EHV is a hemorrhagic virus originating from the African
continent. It derives its name from the Ebola River which is in the vicinity of
where the virus was first identified. An individual infected with EHV will often
suffer the following, worsening systems:
• Fever (greater than 101.5°F);
• Severe headache;
• Muscle pain;
• Weakness;
• Diarrhea;
• Vomiting;
• Abdominal pain;
• Unexplained hemorrhaging (bleeding or
bruising); and
• Death
Though an individual’s symptoms may appear anywhere from 2
to 21 days after exposure to the virus, the average is 8 to 10 days. The virus
has a mortality rate in certain areas well in excess of fifty percent of
individuals who become infected.
A.
How is EHV Transmitted?
Unlike other diseases, such as influenza, measles, and the
norovirus, EHV is not easily transmitted. An individual who has been exposed is
not contagious until an infected individual shows symptoms of the disease.
EHV is transmitted through direct contact, either broken
skin or mucous membranes, with an infected individual’s:
• Blood or bodily fluids, such as
urine, saliva, feces, vomit, semen; and
• Objects
that have been contaminated with the virus (i.e., needles and syringes).
Though EHV is not readily transmitted by coughing or
sneezing, it is possible that an infected individual could transmit the virus
if his or her saliva or mucous from a cough or sneeze comes into contact with
another individual’s eyes, nose, or mouth. In many cases the virus contaminates
a surface (e.g., desk, arm rest, chair, table, bedding, clothing, etc.) and
another individual comes in contact with the virus through normal daily
activities. Moreover, EHV is able to live outside of the body in blood or other
bodily fluids for up to several days. The virus can remain infectious in human
semen for several months.
II.
What are the Legal Ramifications that Employers
Should Consider?
There are several employment and other laws which may be
directly involved with this disease and must be considered by employers. These are as follows:
A.
Occupational Safety and Health Act
General Duty Clause
Under the Occupational Safety and Health Act (“Act” or
“OSHA”), the employer has a legal obligation to provide a safe and healthful
workplace. One of the agency’s enforcement mechanisms is the ability to issue
citations with monetary penalties to employers. The “General Duty Clause” (Section 5(a)(1)) of
the Act requires an employer to protect its employees against “recognized
hazards” to safety or health which may cause serious injury or death.
Given that OSHA does not have a specific regulation which
deals with EHV, the Occupational Safety and Health Administration (the
“Agency”) will utilize the General Duty Clause.
In order to determine the scope of the employer’s obligation under the
General Duty Clause, OSHA is empowered to utilize outside nationally recognized
consensus standards or other authoritative sources. In this case, OSHA would rely upon
recommendations issued by the Centers for Disease Control (“CDC”), the National
Institute for Occupational Safety and Health (“NIOSH”), the World Health Organization
(“WHO”) or other similar resources. If
the Agency can establish that employees at a worksite are reasonably likely to
be “exposed” to the EHV (e.g., serving as healthcare providers,
emergency responders, transportation workers, etc.), OSHA will require the
employer to develop a plan with procedures to protects its employees.
Multi-Employer Worksite
Under the Act, the host employer may also have additional
legal obligations to the employees of another employer who may come to the host
employer workplace and may potentially be exposed to the hazard (in this case
to EHV carriers). OSHA can utilize its authority under the “multi-employer
workplace doctrine” to issue citations to the host employer when personnel of
another employer are exposed. In these
instances, citations can be issued by the Agency to the host employer if
another employer’s staff members are exposed or if the host employer created
the hazard or exposed the other employees to the hazard. The host employer or
the controlling employer at the site will ultimately be held responsible to correct the hazard.
Response Plan
OSHA will expect the responsible employer to develop a
program based upon a “hazard assessment” of potential exposure at the worksite
(hygiene and decontamination), including:
•
conduct employee awareness training regarding the
hazard;
•
develop procedures requiring the issuance and use of
personal protective equipment (PPE) (e.g.,
masks, gloves) if necessary to prevent infection and transmission;
•
develop a means of reporting infection and providing
medical surveillance for employees who contract the disease;
•
maintain appropriate documentation of the foregoing
actions;
•
preserve medical records;
•
record on the OSHA 300 Log any illnesses which are
occupationally related.
Whistleblower Protection
Because of the significant health hazards associated with
this disease, it is possible that an employee could refuse to work because s/he
believes that his/her health is in imminent danger at the workplace due to the
actual presence or reasonable probability of the disease at the workplace. An employee who make such a complaint is
engaging in “protected activity” under Section 11(c) of the Act and is not
subject to adverse action by the employer for refusal to work until the employer
can establish through “objective” evidence that there is no hazard or that the
employer has developed a response plan that will reasonably protect the
employee from exposure to the disease.
B.
Worker’s Compensation – Disability Benefits
In the event that an employee contracts EHV as a result of
occupational exposure, (in other words, the illness “arises out of and in the
course of employment” which the employee must prove with competent medical
evidence), the employee is entitled to receive temporary total disability
benefits in lieu of wages, reasonable and necessary medical treatment and an
award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should
evaluate whether it has adequate worker’s compensation insurance coverage and
coverage limits that include occupational diseases.
If an employee contracts the disease and it is not
occupationally related, the employee may be entitled to disability benefits if
the employer provides such benefits.
Again, the extent of such benefits and any exclusions should be
carefully evaluated by the employer. The
employer must consider that EHV is going to involve significant medical issues,
such as determining (1) whether the employee is infectious, (2) what type of
treatment is necessary, (3) whether the employee presents a health risk to
others and, (4) when the employee can safely return to work. Therefore, it is
essential that the employer identify a competent medical professional with
expertise in infection control who can advise it on all medically-related
issues, including worker’s compensation.
C.
Family and Medical Leave Act
Under the Family and Medical Leave Act (“FMLA”), employers
who have more than 50 employees are required to provide up to twelve (12) weeks
of unpaid leave to a qualified employee who has a “serious health
condition.” An employee is also eligible
under the FMLA in the event of a “serious health condition” affecting its
spouse, child or parent(s).
If an employee contracts EHV, this disease will most likely
be considered a “serious health condition” under the FMLA warranting the unpaid
leave. Similarly, if an employee’s parent, spouse or a child contracts the
disease, this will likely be a qualifying event entitling the employee, with
physician’s documentation, to utilize leave time to care for such an immediate
family member.
It is certain that issues may arise if the employee
contracts the disease but is able to continue working while potentially
exposing other employees to infection. Since the CDC appears to recommend
removal of such individuals from the workplace during the incubation period of
the disease (2-21 days) to prevent transmission of the disease, the employer
may have to consider placing the employee on an FMLA leave or providing some
other form of leave despite the employee’s desire to continue working.
If the employee exhausts the entire twelve weeks of FMLA
leave, and is unable to return to work at that time, the employer may wish to
consider additional unpaid leave for the employee, although such leave would be
outside of the FMLA required reinstatement rights.
D.
Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) provides certain protections to
employees who may have physical, mental or emotional “disabilities” but who are
otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment
which substantially limits one or more of the major life activities of an
individual (e.g., breathing, working,
speaking) which is chronic in nature.
Thus, EHV, which is expected to involve temporary infection, and
hopefully recovery, would not appear to qualify as a “disability.”
The ADA may become a factor, however, if an employee
develops a disability as a result of the disease and cannot return to their
former work duties because of such impairment.
The employer must then be prepared to engage in an “interactive process”
with the employee which involves a case-by-case dialogue regarding the employee’s
ability to return to work, any work restrictions, what accommodations may be
available which do not cause undue hardship to the employer or whether the
employee’s disability presents a direct threat to the health or safety of the
employee or other employees. Again, it
is recommended that employers engage competent medical advice regarding any
accommodations which may be warranted as a result of the long term effects of
this disease.
E.
Premises Liability
Under general common law principles in most jurisdictions,
a landowner (sometimes the employer) who allows third parties to enter upon its
premises for business or related purposes (such as clients, vendors, contract
employees), owes these individuals a duty of “reasonable care” to protect them
against hazards at the premises which are not “open and obvious.” In the case
of EHV, if the landowner (for example, a healthcare provider, emergency
responder, transportation related company) is (or should be) aware that there
are infectious persons at the premises (whether its own employees or tenants)
who may create a health hazard to these third party entrants, there may be a
duty to warn such third parties, or to prevent access to certain facility
areas. In the event that the building
ventilation system or washroom facilities may become contaminated with EHV, the
landowner may have an obligation to prevent such contamination through enhanced
sanitation measures.
In many cases, the legal duty of the landowner for site
security and sanitation will be defined by contractual documents, such as
leases. The landowner should make sure
to review such documents to confirm its obligations regarding third parties who
may have access to the property.
III.
Recommendations
It is recommended that employers become knowledgeable about
this disease by accessing recognized sources of information (identified below).
In addition, employers should determine, based upon a “hazard assessment,”
whether an EHV response plan is required.
For example, does the employer employ individuals
(b) who have or are expected to travel to/from
western Africa or other geographical areas where the disease has been
identified.
If so, the employer may need to consider:
(1) means and methods to protect employees before
they travel to areas known to have experienced the EHV disease,
(2) what procedures will be followed when these
employees return to the United States from such areas (e.g., possible
quarantine, fitness for duty medical examination if the employee exhibits the
symptoms of EHV). In some cases, the
employer may be able to offer employees the option of remote work to isolate
these employees from the general working populace during the incubation period.
Finally, in the event that the employer engages in
activities where there is a possibility of employee infection, the employer
should consider consulting with its local Department of Public Health to obtain
guidance, as well as engaging with a medical provider who has particular
expertise with infectious diseases of the magnitude of EHV.
IV.
Where Can I Find Additional Information on EHV?
A.
Informational Websites
Center for Disease
Control - www.cdc.gov
U.S.
Department of Health & Human Services - www.flu.gov
OSHA – www.osha.gov
The World Health
Organization - www.who.int
CDC
Emergency Response Hotline for health employers - (770) 488-7100
Local Department of Public Health
NOTE: If you wish to receive complimentary copies
of this article and future articles on OSHA and employment law related topics,
please contact Mark A. Lies, II at mlies@seyfarth.com to
be added to the address list.
Mark A. Lies II is an attorneys
in the Environmental, Safety and Toxic Tort Group in the Chicago office of
Seyfarth Shaw LLP. Mr. Lies is a partner
who focuses his practice in the areas of products liability, occupational
safety and health, workplace violence, construction litigation and related
employment litigation. Mr. Lies can be
contacted at mlies@seyfarth.com (312/460-5877).
Kerry M. Mohan is an associate with Seyfarth Shaw, (312) 460-5659,
kmohan@seyfarth.com. His practice
focuses on occupational safety and health, traditional labor matters, and
related employment law and civil litigation
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