One of your employees (we'll call him "Don") visits relatives in a West African country that is a "hotspot" for the deadly Ebola outbreak. When Don returns to work, you are concerned that he unknowingly may have been exposed to the Ebola virus and could infect co-workers and customers. As a result, you want to ban Don from your premises for the next 21 days, which is considered the maximum incubation period for the Ebola virus. Does that create the risk that Don will sue you under the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against individuals with disabilities? On the other hand, if you permit Don to return to work, do you risk lawsuits from co-workers, customers, or others with whom he comes in contact?
Consider the following to evaluate your course of action. When Don returns from his trip, there are two alternatives: either he is infected with Ebola, or he is not. Until 21 days pass, however, you will not know. The workplace solution you implement based on these two unknown scenarios largely depends on answers to three questions under the ADA: Is Don disabled? Does Don pose a direct threat to others at work? Is there a reasonable accommodation available to eliminate the risk?
Is Don disabled?
The answer to the first question, although relevant to determine the level of risk, is likely trumped by the second two, so we will not dwell on it. Suffice it to say there are valid arguments on both sides of the question of whether a person infected with Ebola (or falsely perceived as having Ebola) is disabled under the ADA. Approaching the issue based on the assumption that Don is disabled will help you focus on a practical solution and minimize risk.
Does Don pose a direct threat to others at work?
The second question – whether Don poses a direct threat to others – is the keystone in the analysis. The ADA permits employers to exclude disabled individuals from work if they pose a direct threat to others. Excluding a disabled employee from work on this ground requires the employer to demonstrate that his presence creates a significant risk of substantial harm to the health or safety of others that cannot be eliminated by reasonable accommodation. The direct threat assessment must be objective, based on current medical knowledge, and should consider the duration of the risk, the nature and severity of the potential harm, the likelihood of the harm, and the imminence of the harm.
There are overwhelming arguments that a person with Ebola constitutes a direct threat to others in the workplace under ADA standards. Ebola is brazenly noxious. It is present not only in an infected person's blood, but also in his saliva and perspiration. Contracting Ebola is a death sentence 60% of the time. Once infected, the person may be asymptomatic for up to 21 days, during which time he can infect others. In the extreme, an infected person in a dense work environment can turn items he touches with sweaty hands – door handles, elevator buttons, phones, keyboards – into deadly, invisible time bombs. Keep in mind that the validity of direct threat analysis is not tested in hind sight after the 21-day period. In other words, Don can be considered to pose a direct threat to others during the 21-day period even if it turns out that he is not infected with Ebola, as long as you had an objective, reasonable basis for your conclusion.
Is there a reasonable accommodation available to eliminate the risk?
The third question, whether a reasonable accommodation can eliminate or minimize the risk of transmission, also should be considered. Given the circumstances in which Ebola can be transmitted to others (even healthcare workers in hazmat suits have become infected), it is difficult to conceive of practical accommodations that would permit Don to work safely with others with no risk of transmission. Nevertheless, one should adhere to the ADA's interactive process to explore accommodations.
There are, however, at least two accommodations endorsed by the EEOC in other situations that may be appropriate for Don. The first would be requiring him to work from home during the 21-day period. If the nature of Don's job does not permit work from home, a 21-day leave of absence is an option. Indeed, the EEOC takes the position that granting an employee leave to recover from a disability can be a reasonable accommodation. Whether Don is compensated or permitted to use vacation or other paid time off during the 21-day period should be evaluated under your existing policies and procedures.
In deciding whether to preclude Don from coming to work for 21 days, also consider the following, big picture comparative analysis. If it turns out that Don is infected with Ebola and you permitted him to return to work and others are infected, the horrors are self-evident. If Don is allowed to return to work and you adopt a "wait and see" approach to see if he is infected with Ebola, it is not unreasonable to assume that co-workers and customers will display varying levels of rebellion – which could include resignations. On the other hand, if Don is not infected, but is excluded from work for 21 days after which he returns to his job, what is the harm to him? Don may claim that he is owed three weeks of pay and that he suffered emotionally, but compare that against the first possibility. Ultimately, all options present risks, and finding the right solution involves balancing those risks in light of the specific facts at hand. In addition to the ADA, you will need to ensure that your solution complies with other laws like the Family Medical Leave Act. Litigation risks by employees based on the looming Ebola crisis are no longer theoretical – the threat is real.
Todd Horn has over 25 years of experience in employment litigation and compliance initiatives and is the co-author of Maryland Employment Law, a treatise that courts cite as a leading reference. Mr. Horn was selected as the "Lawyer of the Year" for employment law in 2011 in Maryland by the peer-review publication Best Lawyers in America. Mr. Horn has been ranked from 2008 to 2014 as a top "Band 1" Maryland employment lawyer by Chambers USA, which reported that he "is admired as a fantastic litigator – one of the best in the courtroom, with a tremendous presence" and "is particularly sought out for high-stakes litigation."