Our last two blog posts talked about Ebola facts and the legal background that will frame any employer actions taken to address Ebola in the workplace.  This post will offer some practical guidance on what options employers might consider. The bottom line question of interest to employers is what can they do with regard to protecting the workplace from Ebola.  There is no one size fits all answer.  The right choice for each employer will depend on the type of workplace, the job the employee performs, and the employer’s tolerance for legal risks (to name a few).   The following represent several options based on the CDC’s and other guidances:

Employee Education.  There is widespread misunderstanding of how Ebola is transmitted, and where the outbreaks are occurring.  Employees should be educated as to the facts, which should calm some of the fears in the workplace.

21-Day Leave.  Regarding Ebola policies/procedures, one size does not fit everyone.  A blanket policy of requiring all employees traveling to the areas of outbreak to remain out of work for 21 days following their return to the U.S., either with or without pay, and to obtain a medical examination releasing them to return to work at the end of the period would likely be deemed unnecessary under the CDC guidelines, at least with regard to those who were not exposed to the Ebola virus.  On the other hand, it may be appropriate for workplaces such as hospitals and nursing homes, where the nature of the work and risk of harm to the populations served requires a more stringent standard.  Employers that choose this rule should be able to justify the business necessity of adopting it.  In addition, placing the employee on paid leave will minimize the risk of liability that might be found under federal anti-discrimination laws.  In order to further any risk involved in this approach, employers can also choose not to require a medical examination for employees who were not exposed to Ebola during their travels.

Combined Leave and Return to Work.  A more nuanced approach is to require employees who have been exposed to the virus to remain out of work for the 21 days, either with or without pay, but to permit employees not known to have been exposed to the virus in their travels to an area of outbreak, to return to work, subject to self-monitoring.  Obviously this contemplates that the employee would know whether he/she was exposed and would provide an honest and educated answer.  Depending upon the circumstances, employers may further choose to require such employees to report on self-monitoring, or check the temperatures of the employees during the 21-day period.

Another approach, in keeping with the CDC guidelines, is to require employees who have been exposed to Ebola to be assessed by their doctor, in consultation with public health authorities, in order to determine their risk level and what actions are appropriate.  Whether the employee would be permitted to return to work, with self-monitoring and daily reporting, would depend on the doctor’s assessment.  Employees not exposed to Ebola would be permitted to return to work with self-monitoring (and daily reporting), as set forth in the previous option.

Telecommuting.  If an employee is required to remain home for the 21-day period, telecommuting may or may not be an option.

Family Members.  In addition, employers can require employee to report on whether household members have traveled to such areas, and whether they exhibit any signs of infection.  If there is, then the employee can be required to self-monitor or to remain out of work for the 21-day incubation period.

Confidentiality.  Any information received from employees with regard to Ebola exposure, symptoms, and medical examinations should be treated as a confidential medical record (meaning that it is kept in a secure file separate from the employee’s personnel file).  It is not appropriate for the employer to discuss the individual employee’s exposure, symptoms or results of medical examinations with the co-workers, or even managers who do not have a business need to know.  Employers may and should communicate that they have implemented Ebola policies and that the policies are being followed with regard to all employees to ensure a safe workplace.

Consult with Your Attorney.  In developing a written policy, we suggest that you consult with counsel to ensure that, before the proposed policy is implemented, legal risks have been identified and assessed, and that the policy is appropriate for your specific workplace.  In addition, what the policy actually contains may need to be modified as the Ebola situation further develops.