[PPT] - Managing Your Workforce During the Ebola Outbreak: Impact on Leave PowerPoint Presentation

SLIDE 1

Managing Your Workforce During the Ebola Outbreak: Impact

n Leave Policies,

Privacy Laws and More

Tara A. Aschenbrand tara.aschenbrand@squirepb.com Meghan E. Hill meghan.hill@squirepb.com

SLIDE 2

2

squirepattonboggs.com

2

squirepattonboggs.com

Presenters

Meghan E. Hill Senior Associate Columbus, Ohio New York, New York T: +1 614 365 2720 T: +1 212 407 0105 E: meghan.hill@squirepb.com Tara A. Aschenbrand Principal, Columbus, Ohio USA T: +1 614 365 2713 E: tara.aschenbrand@squirepb.com

SLIDE 3

3

squirepattonboggs.com

3

squirepattonboggs.com

Agenda

Ebola Background and Status
Legal Considerations
Occupational Safety & Health Administration
Americans with Disabilities Act
Practical Tips and Scenarios

SLIDE 4

4

squirepattonboggs.com

4

squirepattonboggs.com

EBOLA

SLIDE 5

5

squirepattonboggs.com

5

squirepattonboggs.com

Statistics and Response

In Western Africa (Guinea, Liberia, and Sierra Leone)
As of November 14, 2014, there have been over 14,000 cases of Ebola;

approximately 5,000 of those who have contracted the disease have died.

In the United States
On September 30, 2014, the CDC confirmed the first travel-associated

case of Ebola to be diagnosed in the United States. Thomas Eric Duncan traveled from West Africa to Dallas, Texas. He passed away on October 8.

Two healthcare workers who treated Duncan tested positive for Ebola, were

treated, and have since recovered.

All passengers and crew on flights taken by an exposed worker were monitored

and cleared.

New York City’s first case: Dr. Craig Spencer recovered and was

discharged from Bellevue Hospital Center on November 11, 2014.

On November 17, 2014 Dr. Martin Salia passed away at Nebraska Medical

Center from Ebola. He contracted the virus while treating patients in Sierra Leone.

SLIDE 6

6

squirepattonboggs.com

6

squirepattonboggs.com

Statistics and Response

CDC has issued a Warning, Level 3 travel notice, advising U.S.

citizens to avoid nonessential travel to Guinea, Liberia, and Sierra

Leone. CDC recently issued an Alert, Level 2 travel notice for

Mali.

Travelers arriving from Liberia, Sierra Leone, or Guinea are now

arriving to the U.S. at one of five airports where entry screening is being conducted, and those travelers will be actively monitored daily by state and local health departments for 21 days from the date of their departure from West Africa.

As of November 17, travelers arriving in the U.S. from Mali will be subject

to the same policies as those from Liberia, Sierra Leone, and Guinea.

California, Connecticut, Florida, Georgia, Illinois, New York, New

Jersey, and Ohio all have some form of mandatory quarantine.

Kaci Hickox, first aid worker, was initially quarantined in Maine, but a judge

later reversed the state’s in-home quarantine order.

SLIDE 7

7

squirepattonboggs.com

7

squirepattonboggs.com

Ebola Virus Disease (EVD)

Symptoms of Ebola include
Fever
Severe headache
Muscle pain
Weakness
Diarrhea
Vomiting
Abdominal (stomach) pain
Unexplained hemorrhage

(bleeding or bruising)

Symptoms may appear

anywhere from 2 to 21 days after exposure to Ebola, but the average is 8 to 10 days.

SLIDE 8

8

squirepattonboggs.com

8

squirepattonboggs.com

Ebola Virus Disease (EVD) Cont’d

Ebola is spread through direct contact

(through broken skin or mucous membranes in, for example, the eyes, nose, or mouth) with

blood or body fluids (including but not

limited to urine, saliva, sweat, feces, vomit, breast milk, and semen) of a person who is sick with Ebola

objects (like needles and syringes) that

have been contaminated with the virus

Ebola is not spread through the air or by

water, or in general, by food.

Healthcare providers caring for Ebola

patients and the family and friends in close contact with Ebola patients are at the highest risk of getting sick.

Once someone recovers from Ebola, they

can no longer spread the virus.

SLIDE 9

9

squirepattonboggs.com

9

squirepattonboggs.com

Risk Management

Review information on Ebola regularly
Status of outbreak: CDC, state Department of Health, WHO
Regulations/directives potentially affecting employers: OSHA, EEOC, DOL
Travel restrictions/advisories for employees travelling near, to or through affected

areas: State Department, FAA, airports

Educate employees, particularly those who will travel to, near, or through

affected areas, about Ebola. Consider posting general information in common areas and providing employees with information disseminated by the CDC and Ohio Department of Health.

Due to the CDC’s new Ebola monitoring protocol for travelers coming from

affected countries, employers can rely on clearance from public health authorities in connection with an employee returning to work after travel in

ne of the impacted countries. This relieves the employer from determining

an appropriate monitoring protocol.

SLIDE 10

10

squirepattonboggs.com

10

squirepattonboggs.com

Occupational Safety & Health Administration

SLIDE 11

11

squirepattonboggs.com

11

squirepattonboggs.com

OSHA

https://www.osha.gov/SLTC/ebola/

SLIDE 12

12

squirepattonboggs.com

12

squirepattonboggs.com

OSHA

US Employees At Greatest Risk For Exposure To Ebola:
Healthcare workers
Mortuary/death care workers
Airline servicing industries
Janitorial staff
Emergency responders
Laboratory workers
Workers who interact with people, animals, goods, and equipment arriving

in the U.S. from foreign countries with current Ebola outbreaks

SLIDE 13

13

squirepattonboggs.com

13

squirepattonboggs.com

OSHA: Relevant Regulations

Bloodborne Pathogens (29 CFR 1910.1030)
Covers exposure to Ebola virus. Ebola is among the subset of contact-transmissible

diseases to which the Bloodborne Pathogens standard applies, as it is transmitted by blood or other potentially infectious materials as defined in the standard.

Respiratory Protection (29 CFR 1910.134)
In situations where workers may be exposed to bioaerosols containing Ebola virus,

employers must also follow the respiratory protection standard.

Personal Protective Equipment (PPE) (29 CFR 1910.132)
General Duty Clause
Requires employers to keep their workplace free of recognized hazards that can

cause death or serious harm to workers.

SLIDE 14

14

squirepattonboggs.com

14

squirepattonboggs.com

OSHA: Requirements & Recommendations

Current OSHA Requirements & Recommendations for Protective Workers

Whose Work Activities are Conducted in an Environment Known or Suspected to be Contaminated with Ebola (Not Direct Contact):

Meet PPE and Respiratory Protection standards
Good hand hygiene protocols to avoid exposure to infected blood and body fluids,

contaminated objects, or other contaminated environmental surfaces

Wear gloves, wash hands with soap and water after removing gloves, and discard

used gloves in properly labeled waste containers

Workers who may be splashed, sprayed, or spattered with blood or body fluids from

environmental surfaces where Ebola virus contamination is possible must wear face and eye protection, such as a full-face shield or surgical masks with goggles. Aprons or other fluid-resistant protective clothing must also be worn in these situations to prevent the worker's clothes from being soiled with infectious material.

Train Workers about the sources of Ebola exposure and appropriate precautions.
Workers tasked with cleaning surfaces that may be contaminated with Ebola virus

must be protected from exposure (see handout).

SLIDE 15

15

squirepattonboggs.com

15

squirepattonboggs.com

Workers’ Comp

Is Ebola contracted in the course of employment covered

by workers’ compensation?

To be compensable, an occupational disease must be

related to a “special risk” or hazard of employment beyond the risk ordinary people are exposed to

Work environment and specific responsibilities of a

worker may increase that worker’s exposure to a virus or bacteria, and worker could argue the disease is compensable

SLIDE 16

16

squirepattonboggs.com

16

squirepattonboggs.com

AMERICANS WITH DISABILITIES ACT

SLIDE 17

17

squirepattonboggs.com

17

squirepattonboggs.com

Americans with Disabilities Act

The ADA prohibits employers from discriminating against

“qualified individuals” with a disability

ADA defines “disability” as a physical or mental

impairment that substantially limits one or more of the major life activities of an individual

Substantial limitation requires both severity and duration of impairment

SLIDE 18

18

squirepattonboggs.com

18

squirepattonboggs.com

Americans with Disabilities Act

ADA regulates employers’ disability-related inquiries and

medical examinations for all applicants and employees, including those who do not have ADA disabilities

ADA prohibits covered employers from excluding

individuals with disabilities from the workplace for health

r safety reasons unless they pose a “direct threat” (i.e. a

significant risk of substantial harm even with reasonable accommodation)

ADA requires reasonable accommodations for individuals

with disabilities (absent undue hardship) during a pandemic

SLIDE 19

19

squirepattonboggs.com

19

squirepattonboggs.com

Relevant ADA Requirements and Standards

ADA regulates employers’ disability related inquiries and

medical examinations for all applicants and employees, including those who do not have ADA disabilities

For example, asking an individual if his immune system is compromised in

a “disability related” inquiry because a weak or compromised immune system can be closely associated with conditions such as cancer or HIV/AIDS

A “medical examination” is a procedure or test that seeks information

about an individual’s physical or mental impairments or health. Whether a procedure is a medical examination under the ADA is determined by considering factors such as whether the test involves the use of medical equipment; whether it is invasive; whether it is designed to reveal the existence of a physical or mental impairment; and whether it is given or interpreted by a medical professional.

SLIDE 20

20

squirepattonboggs.com

20

squirepattonboggs.com

Medical Examination and Disability-Related Inquiries

Prohibited before a conditional offer of employment is

made

After a conditional offer of employment and before an

individual commences work: ADA permits inquiries and examinations if all entering employees in the same job category are subject to the same inquiries and examinations

During employment: prohibited unless they are job

related and consistent with business necessity

SLIDE 21

21

squirepattonboggs.com

21

squirepattonboggs.com

Direct Threat

ADA prohibits covered employers from excluding

individuals with disabilities from the workplace for health

r safety reasons unless they pose a “direct threat”
Direct threat is an important ADA concept
The assessment by the CDC or public health authorities would provide

the objective evidence needed for a disability-related inquiry or medical examination

Factors to consider in determining whether employee poses a

direct threat:

The duration of the risk
The nature and severity of the potential harm
The likelihood that potential harm will occur
The imminence of the potential harm

SLIDE 22

22

squirepattonboggs.com

22

squirepattonboggs.com

Reasonable Accommodation

ADA requires reasonable accommodations for individuals

with disabilities (absent undue hardship)

A “reasonable accommodation” is a change in the work

environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment

SLIDE 23

23

squirepattonboggs.com

23

squirepattonboggs.com

ADA and Privacy Issues

Employers need to be careful about how they treat

disability-related information voluntarily disclosed

Be cautious of caregiver discrimination
Work with local health department or CDC

SLIDE 24

24

squirepattonboggs.com

24

squirepattonboggs.com

Family and Medical Leave Act

FMLA requires covered employers to provide eligible employees with up to

12 weeks of unpaid leave during a “12-month period” for various qualifying reasons

Qualifying reasons include:
Care of employee’s spouse, son or daughter, or parent with a serious health

condition

Serious health condition that renders the employee unable to perform essential

functions of his or her position

Workers or their family members who contract Ebola will likely be eligible for

FMLA leave

The degree of illness needs to constitute a serious health condition
A “serious health condition” is generally defined as an illness, injury,

impairment, or physical or mental condition that involves:

Inpatient care or continuing treatment by a health care provider
For a condition that prevents the employee from performing the functions of the

employee’s job or

For a condition that prevents the covered family member from participating in

school, work, or other daily activities

SLIDE 25

25

squirepattonboggs.com

25

squirepattonboggs.com

Wage and Hour Issues

Non-exempt employees: do not have to pay for hours not

actually worked even if the employer sends the non- exempt employee home.

Exempt employees, can only dock salary for:
FMLA leave
Time taken under valid sick leave policy
Whole days off taken at employee’s request
Whole weeks with no work

SLIDE 26

26

squirepattonboggs.com

26

squirepattonboggs.com

PRACTICAL TIPS & SCENARIOS

SLIDE 27

27

squirepattonboggs.com

27

squirepattonboggs.com

What Should an Employer do to Prepare?

Review your current pandemic plan or develop a new plan
Identify team and/or coordinator
Maintain current information from reliable resources (e.g., CDC, Ohio Department of

Health)

Anticipate fear and anxiety as well as rumors and misinformation
Identify essential employees and inputs required to maintain business operations
Educate employees regarding Ebola, including how it is transmitted
Factsheets provided by organizations such as the CDC:

SLIDE 28

28

squirepattonboggs.com

28

squirepattonboggs.com

What Should an Employer do to Prepare?

Check sanitary housekeeping measures and educate employees

regarding the same (beginning with flu/cold season can be a good time remind employees of this)

Encourage regular hand washing (ensure plenty of liquid soap and paper towels or

hot air hand dryers), supply of hand sanitizers, coughing/sneezing etiquette, proper tissue usage and disposal

Require personal protective equipment to reduce transmission (e.g., gloves, face

masks, gowns, etc)

SLIDE 29

29

squirepattonboggs.com

29

squirepattonboggs.com

What Should an Employer do to Prepare?

Travel
Limit business travel particularly to West Africa except for non-essential travel
Review relevant policies and establish policies if necessary
Sick leave, flexible worksite (e.g., telecommuting) and flexible work hours
Policies to reduce spread of illness (e.g., cough etiquette)
Discrimination: ensure that there is a reporting mechanism (e.g., hotline) to report

discrimination/harassment

SLIDE 30

30

squirepattonboggs.com

30

squirepattonboggs.com

What Should an Employer do to Prepare?

Can an employer take everyone’s temperature?
Generally, it is a medical examination and cannot do this. If it becomes widespread
r you are directed by the CDC or local health authorities in response to a specific

situation, then employer can measure body temperature.

Can an employer encourage telecommuting (work from an alternative

location) for employees?

Generally yes, telecommuting is an effective infection-control strategy and can also

be a reasonable accommodation. Cannot target certain individuals to encourage telecommuting.

SLIDE 31

31

squirepattonboggs.com

31

squirepattonboggs.com

Scenario

Employee plans to travel to West Africa for personal
travel. Other employees refuse to come to work when the

employee returns as they fear the returning employee may have been exposed to Ebola. How should employer respond?

No one-size-fits-all solution
Reassure employees by giving them information from the CDC and other

health organizations to educate them

Reaffirm that the Company takes health and safety very seriously and will

take lawful action to protect them

Ask the employee who travels about such travel:
Whether employee had any contact with anyone exposed to Ebola?
Whether the employee had contact with anyone experiencing flu-like

symptoms?

SLIDE 32

32

squirepattonboggs.com

32

squirepattonboggs.com

Scenario, cont’d

Can employer take the returning employee’s temperature?
According to the Equal Employment Opportunity Commission, taking an employee’s

temperature is a medical examination that is prohibited unless the employer determines that it is job-related and consistent with business necessity.

Can employer quarantine the exposed employee?
Employer cannot quarantine an employee.
Employer can place an employee on a leave of absence for 21-day incubation

period.

Potential liability under ADA as it prohibits discrimination against those who are disabled

(e.g., infected with Ebola) as well as those who are “regarded” as disabled.

Reduce liability by paying employee during incubation period
Other employees refuse to work?
Refusal to work could be a refusal to work under OSHA’s whistleblower protections,

similar state laws or under the National Labor Relations Act (especially if there are a group of employees)

Consider whether the refusal to work is protected before taking adverse action

SLIDE 33

33

squirepattonboggs.com

33

squirepattonboggs.com

You Decide:

Joe returns from travels in New York where he rode the

subway and went bowling. Employees discover that Joe was just in New York and are upset in light of the recent Ebola case in New York. They refuse to come to work if Joe is allowed to work. They demand that Joe must be sent home and not work until the incubation period

concludes. What do you do?

SLIDE 34

34

squirepattonboggs.com

34

squirepattonboggs.com

You Decide:

Joe returns from travels in New York where he rode the subway and

went bowling. Employees discover that Joe was just in New York and are upset in light of the recent Ebola case in New York. They refuse to come to work if Joe is allowed to work. They demand that Joe must be sent home and not work until the incubation period

concludes. What do you do?
Not one size fits all, but some items to consider:
Educate the employees to highlight that it is extremely unlikely that Joe

was exposed to Ebola simply because he rode the subway.

Talk to Joe regarding his travel
Review absenteeism/attendance policies with employees
Consider telecommuting

SLIDE 35

35

squirepattonboggs.com

35

squirepattonboggs.com

You Decide:

What if Joe begins showing symptoms of the disease?
Then employer may make inquiries and require a medical exam because

his condition may pose a direct threat to the health of other employees.

Consider disinfecting the facility following OSHA standards
If Ebola, comply with CDC and local health department

SLIDE 36

36

squirepattonboggs.com

36

squirepattonboggs.com

Resources

CDC

http://www.cdc.gov/vhf/ebola/

World Health Organization

http://www.who.int/mediacentre/factsheets/fs103/en/

State Departments of Health
OSHA

https://www.osha.gov/SLTC/ebola/standards.html

SLIDE 37