Response to Ebola Concerns:

Guidance for U.S. Workplaces

Thomas Benjamin “Ben” HuggettShareholder

Philadelphia Office

tbhuggett@littler.com

Affected African Countries

Statistics

Patient Zero – Dallas Texas

• Initially exposed - 48 people under

observation by CDC and public health

department for initial exposures

– Sunday, October 20 – all cleared

– Including family living in apartment

• Treating Health Care Workers

– 2 developed disease

– Remainder are half way through monitoring

Ebola is not transmitted by

• Casual contact

• Air

• Water

• Food grown or legally

purchased in the U.S.

Ebola Transmission

• Ebola is transmitted through direct contact with a sick

person’s bodily fluids, the most infectious being blood,

feces and vomit.

• Ebola cannot be spread until an infected person is sick

and showing signs and symptoms.

• Transmission must be to mucous membrane or broken

skin.

• Transmission of Ebola from surface contact with objects

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 open cut.

Ebola Transmission

Ebola Transmission

Symptoms: Ebola vs. Flu

• Ebola Symptoms

• Fever

• Severe headache

• Muscle pain

• Weakness

• Diarrhea

• Vomiting

• Abdominal (stomach)

pain

• Unexplained hemorrhage

(bleeding or bruising)

• Flu Symptoms

• Fever or feeling

feverish/chills

• Headaches

• Muscle or body aches

• Fatigue (tiredness)

• Possible vomiting and

diarrhea, more common

in children than adults.

• Cough

• Sore throat

• Runny or stuffy nosehttp://www.cdc.gov

Prevention

• Practice careful hygiene. For example, wash your hands

with soap and water or use an alcohol-based hand

sanitizer

• Avoid contact with blood and body fluids (such as urine,

saliva, sweat, feces, vomit, and semen).

• Do not handle items that may have come in contact with

an infected person’s blood or body fluids.

• Avoid direct contact with the body of someone who has

died from Ebola, including participating in funeral or

burial rituals.

• Avoid contact with animals (such as bats or monkeys) or

with raw or undercooked bushmeat (in Africa)

Direct Care Healthcare

• Infection Control Programs

– Usually require employees to report specific

illnesses and fever

– Should address both employees and patients

• Employee training

• Ebola Treatment

– New CDC guidelines for protective equipment

preclude exposed skin

– Confirmed training on donning and doffing

• There is not a reliable blood test for Ebola

prior to development of the illness and its

visible symptoms.

• There is presently no vaccination for Ebola

virus.

– Canada shipped an experimental vaccination

to the WHO for evaluation and use

Ebola Testing and Vaccination

• Centers for Disease Control (CDC) Warning Level 3

categorization for Guinea, Liberia and Sierra Leone.

• Avoid all non-essential travel to these countries.

– Essential travel is defined as humanitarian aid work, all other

travel is considered non-essential.

• Company Travel may be prohibited

• Personal Travel usually cannot be prohibited

– Insurance coverage, including medevac

– Quarantine in Africa or Europe

Travel Restrictions

• The ADA prohibits employers from making

medical inquiries or requiring medical

examinations.

• Exception– The ADA allows examinations/inquiries that are job related and

consistent with business necessity.

– Employers are not liable when the employee poses a direct

threat to the health and safety of others in the workplace. Fear

of contraction alone does not justify inquiries/examinations.

42 U.S.C. §§ 12112(d)(4)(A), 12113(a)-(b); 29 C.F.R. §§ 1630.2(r), 1630.14(c)

Medical Examinations

Food and Drug Administration

• Food handling employees must report:

– Vomiting

– Diarrhea

– Jaundice (yellow skin or eyes)

– Sore throat with fever

– Infected cuts and burns with pus on hands and wrists

• Big 5 foodborne pathogens exposure

– The Hepatitis A, Norovirus

– Salmonella typhi (Typhoid-like Fever)

– Shigella spp.

– Escherichia coli 0157:H7 (E. coli) or

– other Enterohemorrohagic or Shiga toxin producing E.coli

• Can an employer exclude an employee for the 21 day

incubation period?

• No direct legal prohibition, but …

– Proxy for medical inquiry or examination

– Perceived disability

– FMLA

– National Origin discrimination

– Race discrimination

• The CDC advises that after traveling individuals can

continue normal activities, including going to work.

Exclusion of Employees

Self-Monitoring

For 21 days after travel or exposure

• Take your temperature every morning and evening.

• Watch for other Ebola symptoms: severe headache,

muscle pain, vomiting, diarrhea, stomach pain, or

unexplained bleeding or bruising.

• If your temperature is above 101.5°F (38.6°C) and you

have any other Ebola symptoms, seek medical care

immediately.

• Tell the doctor about your recent travel and your

symptoms before you go to the doctor’s office or

hospital. Advance notice will help the doctor care for you

and protect other people who may be in the doctor’s

office or hospital.

• 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.

– Does not automatically include sweat, urine or feces

– This Standard extends to cleaning up blood in the workplace.

For all employers with a BBP program, it should be reviewed for

any issues arising specifically from Ebola which are not already

included in the program.

OSHA

Cal-OSHA

• In California, the Division of Occupational Safety and

Health (Cal/OSHA) Aerosol Transmissible Diseases

(ATD) standard has provisions which 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 health care

providers but does provide a potential model for other

locations.

OSHA protects a refusal to work when:

• The employee must have asked the employer to

eliminate the danger, and the employer failed to do so,

• The employee refused to work in “good faith”—meaning

the employee genuinely believed that there was

imminent danger,

• A reasonable person would agree that there was an

actual danger of death or serious injury, and

• Not enough time exists to correct the situation through

regular enforcement channels.

29 C.F.R. § 1977.12(b)

OSHA Protected Refusal to work

• Section 7 of the National Labor Relations Act (NLRA)

gives employees the right to engage in “protected

concerted activity” for “mutual aid or protection”—the

right to act together to try to improve their pay and

working conditions.

• To qualify as protected concerted activity, the activity

– Must be group activity or activity on behalf of a group, not purely

individual activity, and

– Cannot be outlandish conduct involving false statements or

extreme accusations.

St. Luke’s Episcopal-Presbyterian Hosp. v. NLRB, 268 F.3d 575 (8th Cir. 2001)

(public false statement that hospital was endangering babies not protected);

Meyers Indus., 281 NLRB No. 882 (1986).

Protected Concerted Activity

• Voicing concerns about workplace safety can qualify as

protected concerted activity.

• Examples

– Weyerhaeuser Co., 359 NLRB No. 98 (2013) – NLRB held that

an employee engaged in protected concerted activity when he e-

mailed management about another employee’s safety concern.

– Design Technology Group, LLC, 359 NLRB No. 96 (2013) –

Employees of a clothing store tried to persuade their manager to

close the store earlier so that they would not have to walk

through an unsafe neighborhood at night. They also posted

about the issue on Facebook. The NLRB held that the

employees were engaged in protected concerted activity

regarding workplace safety.

When Is Voicing Safety Concerns

Protected Concerted Activity?

• Standards, training, and equipment

– Optimal personal protective equipment – Hazmat suits and respirators

– Continuous interactive and updated training

– Right to refuse to care for an Ebola patient if RN believes conditions unsafe

– At least two RNs care for each Ebola patient

• Create Joint Infectious Disease Joint Force

– Monitors system-wide preparedness

– Evaluates/implements Infectious Disease Plan

• Medical services for employees

– Testing for any RN who requests it

– Provide treatment and follow-up medical evaluations as necessary

• No loss of pay/PTO for nurses who miss work due to Ebola exposure

Ebola-Related Bargaining Demand

• Wrongful Discharge

• Defamation

• Unemployment Compensation

• Wage and Hour

• Negligent Retention

State Law Issues

Practical Recommendations

• Update Pandemic Plan or Infection Control

Plan

• Provide Employee Education

– Transmission

– Good hygiene

• Develop Travel Policy

• Maintain consistent treatment for all

employees

Questions & Answers

Thomas Benjamin

“Ben” Huggett

Shareholder

Philadelphia Office

tbhuggett@littler.com