Key Issues, Developments and Strategies Affecting Your Workforce
This Colorado decision is the most recent in a string of cases that have ruled that employers may take adverse action following a positive drug test result. So far, courts in California, Montana, and Washington have rejected claims by medical marijuana patients who lost their jobs after failing drug tests.
Click here for more information on this case and to read the rest of the client alert.
On June 30, 2015, the Department of Labor (DOL) issued proposed rules that will significantly increase the minimum salary threshold required for an employee to be classified as exempt for purposes of overtime pay under federal law. It is expected that nearly 5 million additional workers will become eligible for overtime pay within the first year of the rule’s implementation.
Under the Fair Labor Standards Act (FLSA), employers are not required to pay overtime to certain “exempt” categories of employees. One such category is “white collar” employees such as executive, administrative, professional, outside sales, and computer employees. To qualify for one of the so-called “white collar” exemptions, an employee must meet a minimum salary requirement of $455 per week (or $23,660 per year) and perform certain job duties. The proposed rules increase the salary threshold amount for “white collar” employees to $970 per week (or $50,440 per year) starting in 2016. In addition, the DOL has proposed that the salary level should increase every year automatically after 2016 based on nationwide earnings data. The precise method for calculating this annual salary increase has not yet been determined.
The proposed rules also would alter the requirements for “highly compensated employees”, who are also exempt from overtime. The salary threshold for highly compensated employees will be increased from $100,000 to $122,148, annually.
Notably, the DOL did not propose rules revising the duties tests applicable to the white collar exemptions. Instead, the DOL has asked for public comment on whether the current duties tests are working as intended to determine whether an employee is truly a white collar employee eligible for overtime-exempt status.
Interested parties will have the opportunity to submit comments on the proposed rules before the DOL issues final regulations, which are likely to go into effect in 2016. Although the final regulations have not taken effect yet, employers should assess employees’ salaries to determine how the rules will affect their operating costs when implemented. Reclassification of employees or updated policies on performing overtime work may be appropriate. Now is the time to develop a reclassification plan that ensures proper documentation and recordkeeping, as well as effective communication of the changes to employees.
The U.S. Supreme Court’s June 1, 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. __ (2015), signals to employers that employment decisions based upon neutral policies may run afoul of Title VII, where the policy’s application limits an individual’s religious beliefs or practices. Such is the case even when the individual has not specifically requested or otherwise discussed the need for a religious accommodation. The ruling places the onus on the employer to initiate the interactive accommodation process even when there is very little reason to believe that a religious accommodation may be needed.
Abercrombie & Fitch Stores, Inc. (“Abercrombie”) declined to hire Samantha Elauf, a practicing Muslim, because the hijab (or headscarf) that she wore for religious reasons conflicted with Abercrombie’s “Look Policy” that governs its employee dress code. While Elauf received an interview rating that qualified her to be hired under Abercrombie’s ordinary system for evaluating applicants, the retailer determined that the headscarf, like all other headwear, was prohibited under the policy.
The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit on Elauf’s behalf, claiming that Abercrombie discriminated against her in violation of the religious accommodation protections set forth in Title VII. The primary issue before the Supreme Court was whether an applicant could establish disparate treatment discrimination where the employer lacked “actual knowledge” of the applicant’s need for an accommodation.
In an 8-1 opinion authored by Justice Scalia, the Supreme Court held that actual knowledge was not required. Rather, according to the Supreme Court, “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” In so holding, the Supreme Court drew a distinction between “knowledge,” which is not required under Title VII, and “motive,” which is.
Justice Scalia wrote:
[T]he intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Thus, the Court concluded, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
While Justice Scalia presented the issue as a straightforward matter of statutory interpretation, the ruling seems to whittle away the long standing rule that “intent” (at least at some level) is necessary to support a claim of “intentional discrimination,” protecting even unconfirmed religious practices.
Because an employer’s lack of knowledge may no longer provide a defense as it once did in Title VII religious discrimination matters, employers are best served by initiating open dialogue around an employee’s or applicant’s perceived or suspected religious needs. Such a dialogue is particularly important where an employer is planning to take an adverse action against an employee or applicant. This strategy best positions the employer and employee or applicant to agree upon an accommodation that is reasonable for both parties.
In what is undoubtedly a victory for beneficiaries of ERISA-regulated plans, the United States Supreme Court enlarged the duty of prudence owed by plan fiduciaries to plan beneficiaries and also broadened the statute of limitations applicable to claims alleging a breach of this duty in Timble v. Edison International, 575 U.S. ___ (2015). While the duty of prudence previously arose when selecting investments, the Supreme Court, through the Timble decision, expressly expanded that duty to include the duty to monitor and remove imprudent investments.
In the Timble decision, several individual beneficiaries of an ERISA-regulated plan brought suit in 2007 alleging that plan fiduciaries breached their fiduciary duty in 1999, and again in 2002, when they added three higher priced retail-class mutual funds as 401(k) investments when materially lower priced institutional-class mutual funds were available. Although agreeing with the beneficiaries’ argument regarding the mutual funds added in 2002, the United States District Court held (a holding which was affirmed by the United States Court of Appeals for the Ninth Circuit) that the six-year statute of limitations under ERISA had run with regard to the mutual funds added in 1999. According to the lower courts, although the fiduciaries owed a duty to exercise prudence in selecting an investment, the 1999 selections had occurred more than six years prior without any significant change in circumstances and so the claim was time barred.
The Supreme Court disagreed with the holdings of the District Court and the Court of Appeals for the Ninth Circuit. The Supreme Court determined that, in addition to the duty to exercise prudence in selecting investments, ERISA fiduciaries also owe a “continuing duty to monitor trust investments and remove imprudent ones.” This duty to monitor arises under well-established trust law, as explained by the Supreme Court. Although it refused to detail the contours of the continuing duty to monitor, the Court advised that a fiduciary must “discharge his responsibilities ‘with the care, skill, prudence, and diligence’ that a prudent person ‘acting in a like capacity and familiar with such matters’ would use.” (quoting ERISA, 29 U.S.C. § 1104(a)(1)).
Having elaborated on the continuing duty owed, the Supreme Court then determined that the relevant point in time, for purposes of measuring the six-year statute of limitations, was when the alleged breach had occurred. “[S]o long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely.” With this direction, the Supreme Court remanded the case back to the Court of Appeals to determine the factual questions of whether the fiduciaries in Timble had appropriately fulfilled their duty to monitor and, related, whether any breach of that duty had occurred less than six years prior to the filing of the lawsuit.
In light of the Timble decision, plan fiduciaries should be cognizant of their newly-expanded duty of prudence, which now includes the continuing duty to monitor plan investments and to remove imprudent ones. In other words, plan fiduciaries should periodically review investment options as to their performance versus similar investment vehicles, as well as the costs associated with the investment vehicle. Plan fiduciaries should also ensure that the types of investments offered to beneficiaries are permitted by the pertinent plan documents.
Last week, the United States Supreme Court issued a decision making it easier for pregnant employees to succeed on claims of discrimination based on an employer’s denial of workplace accommodations. In Young v. UPS, the Court held that a plaintiff’s claim of pregnancy discrimination may proceed to the jury by “providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.” Young v. United Parcel Service, Inc., Docket No. 12-1226.
The Young case addresses the common practice of employers providing light duty assignments only to those employees with work-related injury restrictions, as opposed to those employees with restrictions due to pregnancy or other conditions. One of the essential functions of Plaintiff Peggy Young’s job as a part-time delivery truck driver for UPS was the ability to lift packages weighing up to seventy pounds. When Young became pregnant, she was placed on a twenty-pound lifting restriction by her doctor. Young requested a light duty position for the remainder of her pregnancy. UPS denied Young’s request pursuant to its policy limiting light duty positions to those employees who were injured on the job, were disabled under the ADA, or who lost their Department of Transportation (DOT) certification.
Young challenged the denial of a light duty position under the Pregnancy Discrimination Act (PDA), claiming that the policy failed to treat pregnant employees the same as “other persons not so affected but similar in their ability or inability to work” as required by the PDA. Young v. UPS, 707 F.3d 437, 445 (4th Cir. 2013). Following the majority of federal courts, the Fourth Circuit Court of Appeals upheld UPS’s policy finding that it was pregnancy blind, treating pregnant workers and nonpregnant workers alike. Id. at 449.
The Supreme Court disagreed with both Young and UPS’s interpretation of the PDA. Instead, it adopted a new test for courts to use when considering whether an employer lawfully accommodated certain groups of employees without also accommodating pregnant employees. Under this test, an inference of intentional discrimination based on pregnancy arises where a plaintiff demonstrates that her employer’s policies impose a significant burden on pregnant workers, and that the employer has not raised sufficiently strong reasons to justify that burden. The Supreme Court explained that an employee can show a “significant burden” by providing evidence that an “employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.” This burden is then weighed against the employer’s justification, which will not typically be sufficiently strong where the employer claims nothing more than that it is more expensive or less convenient to add pregnant women to those it accommodates. The case has been sent back to the Fourth Circuit Court of Appeals to revisit the issue in light of the Supreme Court’s decision.
Although the Young decision makes it clear that employers do not have to accommodate all pregnant employees in every situation, the new test sets a high burden for employers seeking to defend such light duty policies. Employers should review their work policies, particularly those dealing with light duty, to ensure they comply with the Young decision.
On January 26, 2015, the U.S. Supreme Court published M&G Polymers USA, LLC v. Tackett, 574 U.S. ___ (2015); 2015 U.S. LEXIS 759 (Jan. 26, 2015), addressing a long-standing issue concerning retiree medical benefits that has plagued employers of unionized facilities for over thirty years. The M&G Polymers Court reviewed a case from the U.S. Court of Appeals for the Sixth Circuit (which presides over Ohio, Kentucky, Tennessee and Michigan) and unanimously held that reviewing courts may not infer that parties to a collective bargaining agreement intended retiree medical benefits to vest for life where the duration of such benefits is not expressly addressed in the agreement. Instead, according to the Court, the determination as to lifetime vesting should rest on the application of ordinary principles of contract law – at least to the extent that such principles are consistent with federal labor policy.
The M&G Polymers case arose out of a disagreement between a group of retirees and their former employer – M&G Polymers USA, LLC. In 2000, upon the purchase of a manufacturing plant, the employer entered into a master collective bargaining agreement and related pension, insurance, and service award agreement (“P&I Agreement”) with a predecessor of the United Steelworkers Union. The P&I Agreement provided that certain retirees, along with their surviving spouses and dependents, would “receive a full Company contribution towards the cost of [health care] benefits;” that such benefits would be provided “for the duration of [the] Agreement;” and that the agreement would be subject to renegotiation in three years.
Following the expiration of the collective bargaining agreement, the employer announced that it would require retirees to contribute to the cost of their health care benefits. Three named retirees, in turn, filed a class action lawsuit against the employer and its company-sponsored health plans, asserting that the P&I Agreement created a vested right to lifetime, contribution-free health care benefits.
The Sixth Circuit agreed with the retirees. In so holding, the Sixth Circuit applied the so-called “Yard-Man inference,” which favors lifetime vesting of retiree medical benefits provided for in a union contract. The rule was first recognized in Union, United Auto, Aerospace, & Agricultural Implement Workers of America v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983). While the collective bargaining agreement in Yard-Man included a general “durational clause” that provided that all obligations thereunder expired at the end of the agreement’s term, the Sixth Circuit found that the agreement was ambiguous as to the duration of retiree medical benefits. To resolve the ambiguity, the court looked to the “context” of labor negotiations and inferred that parties engaged in collective bargaining would intend retiree benefits to vest for life. Since the Yard-Man decision was published in 1983, the Sixth Circuit has expanded the doctrine even further, ultimately holding that retiree medical benefits are intended to vest for life where a collective bargaining agreement is silent as to the duration of such benefits.
In a unanimous opinion authored by Justice Thomas, the M&G Polymers Court rejected the “Yard-Man presumption” as inconsistent with ordinary contract principles, stating that it “distorts the attempt to ascertain the intention of the parties by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” The Court also rejected the Sixth Circuit’s approach to durational clauses, holding that a contract that is silent as to the duration of retiree benefits precludes an inference that the parties intended those benefits to vest for life. The Court thus remanded the matter to the Sixth Circuit with directions to review the collective bargaining agreement at issue under ordinary principles of contract law.
In a concurring opinion, Justice Ginsberg rejected the employer’s assertion that “clear and express” language was necessary to vest retiree health benefits. Justice Ginsberg noted that post contract obligations may not only be derived from express contract terms, but implied terms as well. Justice Ginsberg urged the Sixth Circuit on remand to examine the entire agreement to determine whether the benefits had vested.
While at first blush the M&G Polymers case appears to be a clear win for employers doing business within the Sixth Circuit, its impact remains to be seen. At a minimum, the decision provides employers with a reasonable assurance that well-crafted contractual language and/or extrinsic evidence will weigh in their favor when faced with potentially crippling claims for lifetime benefits. Because the issue of vesting typically arises in litigation – long after the applicable contracts have been drafted and implemented – the central focus necessarily becomes the intent of the parties at the bargaining table. The M&G Polymers decision provides some measure of objectivity for employers in 2015, as they assess whether to modify retiree health benefits going forward. The new test, conducted without the “thumb on the scales,” establishes a better foundation for employers seeking to argue against lifetime vesting.
On December 15, 2014, the National Labor Relations Board (“Board”) published its Final Rule governing union elections. The new rule, which will become effective on April 14, 2015, ushers in significant changes to the manner in which the Board handles elections. The Board had attempted to make changes to union election rules in December 2011, but those changes were invalidated for being adopted without a proper quorum.
Under the Final Rule, unions will have an increased advantage in an organizing campaign because, among other things, there will be a dramatically shorter period of time between the filing of a representation petition and an election, making it more difficult for an employer to present its arguments against unionization to its workforce. Below is a list of significant changes under the Final Rule.
• Upon the filing of a petition for a representation election, employers will be required to post and distribute to employees a Board notice regarding the petition and the potential for an election. If an employer also regularly issues communications to its workforce electronically, it must also distribute all election notices to its employees electronically in addition to the hardcopy notices. Before this Final Rule, any such notice was only voluntary on the employer’s part.
• Pre-election hearings must be held within eight days after service of a hearing notice.
• The purpose of the pre-election hearing is to determine if a question of representation exists. A question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining or concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative. Disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit will not need to be litigated before an election is held. The only issues permitted to be addressed in a pre-election hearing are those necessary to determine whether an election should be held.
• Employers will be required to provide a preliminary voter list at least one day before the start of the pre-election hearing.
• Employers will be required to submit a written Statement of Position one day before the pre-election hearing. If an issue is not addressed in the employer’s position statement, it will be deemed waived.
• Parties will no longer have the right to file post-hearing briefs. Instead, they will be required to request leave to do so. It is anticipated that leave will be infrequently granted.
• The final list of voter eligibility (the so-called Excelsior list) will be required to be produced within two business days after the Region issues its decision and direction of election. The Excelsior list will need to be filed electronically with the NLRB and served on the union. The information in this list has been expanded under the Final Rule to include disclosure of the employee’s name, address, personal cell and home telephone numbers if available, personal email addresses if available, work location, shift, and job classification. The Final Rule did not affect the requirement that the Excelsior list be in the union’s possession for at least 10 days before the holding of an election, unless the union waives the requirement. It is anticipated that unions will be inclined to waive the 10-day period, however.
• There will no longer be an automatic 25-day waiting period between the issuance of a decision and direction of election and the holding of the election.
• A party that files objections to an election must do so within seven days of the tally of ballots and must also submit evidence in support of the objections at the same time the objections are filed. This is a significant departure from the existing rule, which allowed a party to file objections within seven days of the tally of ballots and then take an additional seven days to submit evidence in support of the objections.
• A hearing on the objections, if required, will be held within 21 days from the tally of ballots.
Based on these changes, it is technically possible for an election to be scheduled and held within 13 days of the filing of the petition, provided that the union waives the 10-day Excelsior list period and the Region issues its decision and direction of election the day after the pre-election hearing.
As mentioned above, the Final Rule takes effect on April 14, 2015. Employers should consider taking the following steps now before being faced with a petition and a significantly compressed election timeline.
• Educate the company workforce with respect to the company’s position on unionization.
• Educate employees about the significance of signing authorization cards.
• Conduct surveys to assess the employees’ satisfaction with the terms and conditions of employment.
• Develop a lawful non-solicitation policy if the company does not have one in place.
• Prepare a plan in advance-like a fire safety drill-of how the company will respond in the event of the filing of a petition.
• As part of your advanced plan, identify the roles of different individuals in your organization and their respective responsibilities in executing the plan.
• Assess whether supervisors will be deemed to be Section 2(11) supervisors under the NLRA, and thus excluded from organizing activities.
Does your company provide email access to its employees? Are there restrictions on how and when email may be used? These issues are addressed in the National Labor Relations Board’s (NLRB) December 11, 2014 decision in Purple Communications, Inc., which affects both non-union and union employers. In Purple Communications, the NLRB reversed its position and held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The employer can rebut this presumption by demonstrating that special circumstances necessitate a specific restriction to maintain production or discipline. Although this special circumstances justification could encompass a total ban on nonwork email use by employees, this would be a “rare case.”
The handbook provisions at issue in Purple Communications prohibited employees from using company email to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the company” or to send “uninvited email of a personal nature.” In reaching their decision, the NLRB reasoned that the ability of employees to communicate in the workplace is central to exercising their rights under the National Labor Relations Act, especially during an initial organizing campaign. Due to significant changes in technology, email is a critical means of communication which now serves as “the natural gathering place pervasively used for employee-to-employee conversations.”
This decision means that employees who have access to company email may use that email system during nonworking time in order to actively campaign on behalf of a union that is attempting to organize the company, even if such a position is contrary to the position of the company. The decision, however, does not require employers to provide email access to employees where employers have otherwise chosen not to grant any email access at all. Similarly, the decision does not require the company to provide access to the email system to third parties like a union. The decision also does not prevent employers from continuing to monitor employee use of company computer and email systems for legitimate management reasons. The NLRB specifically limited this decision to email without addressing other forms of electronic communications.
Employers who are concerned about running afoul of the Purple Communications decision should review their handbooks and any policies addressing employee use of company email systems. Employers should also review those classifications of employees to which they provide email access.
On December 9, 2014, the United States Supreme Court in Integrity Staffing Solutions, Inc. v. Busk unanimously held that time spent going through mandatory security screening at the conclusion of one’s shift is not compensable time under the Fair Labor Stands Act (“FLSA”), even if the security screening takes as long as 25 minutes. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court clarified and reaffirmed the standard for determining when pre- and post-shift activities are compensable under the FLSA.
In Integrity Staffing, the employer provided warehouse staffing to clients such as Amazon.com. In order to prevent employee theft, the employer required its employees to undergo security screening at the end of their shift for which they were not compensated. The Supreme Court noted time spent which is preliminary or postliminary to the employees’ “principal activities” is not compensable, but if the activity is “integral and indispensable” to the principal activity, then it would be compensable. The Supreme Court found that the time spent by employees going through security was not compensable because it was not their “principal activity” for which they are employed to perform or integral and indispensable to the principal activity.
The Supreme Court chastised the Ninth Circuit for focusing on whether the activity was required and for the benefit of the employer. Such a focus, reasoned the Supreme Court, would effectively negate the exemption for “preliminary and postliminary activity” and impermissibly expand the reach of the FLSA.
Although this case did not establish a new legal standard, it proves useful in understanding when pre- and post-shift activities will be considered compensable under the FLSA. Logically, activities that constitute the principal functions of an employee’s job are compensable. In addition, any other activity that is (1) integral, meaning an intrinsic element of the principal activities, and (2) indispensable, meaning necessary for the performance of the principal activities, will also be considered compensable. To illustrate, butchers sharpening their knives before a shift would be compensable time because it is both integral and indispensable for the performance of their principal activity. An employer must compensate employees for all time spent during these integral and indispensable activities. Further, once an employee has performed one compensable task in a workday, all other work performed after that task up until the last compensable task is “all in a day’s work” and must be paid (even if the task might otherwise not require compensation).
Ebola Hemorrhagic Fever (also known as Ebola or EVD) has caused significant concerns for Ohio employers, particularly as the connections between our local workforce and Dallas healthcare worker April Vinson continue to come to light. Vinson, who has tested positive for the virus, reportedly traveled by air to Cleveland on October 10 and returned to Dallas on October 14. Following her return to Dallas, on October 15, she was diagnosed with EVD. Vinson’s travel activity has sparked tension, fear and in some cases panic amongst those who may have come in contact with her, directly or indirectly.
Employers have been faced with a barrage of inquiries from employees and their labor organizations seeking assurances that appropriate policies have been put in place that protect against the potential of exposure to EVD in the workplace. An employer’s response depends upon several fact specific matters and may implicate dozens of laws and regulations designed to protect employees, including the Occupational Safety and Health Act, the National Labor Relations Act, the Americans with Disabilities Act, the Family Medical Leave Act, the Health Information Portability and Accountability Act, the Fair Labor Standards Act, state workers’ compensation laws, and the federal and state antidiscrimination laws. Employers, however, can and should get out in front of the issue by taking certain proactive steps. This client alert is intended to provide practical guidance for employers as they wade through the legal quagmire that surrounds this issue.
What should I be communicating to my employees?
Effective communications are imperative to an employer’s ability to address any real or perceived concerns about workplace exposure to EVD. Employees want to know how their employer will handle the situation if harm becomes imminent.
There are a number of measures an employer can take to better educate employees about EVD. First, if a significant number of employees have expressed concern about the potential for exposure to EVD, consider conducting an informational meeting to discuss the facts as we know them today. Provide information about how the virus spreads and any preventative measures that should be taken (i.e., washing hands frequently, using hand sanitizer, covering open cuts and wounds, etc.). Reassure your employees that the risk of an outbreak in the United States is very low.
According to guidance from the Centers for Disease Control (CDC), EVD is only transmitted through contact with blood and other bodily fluids of an infected person. People can also become infected from indirect contact by having broken skin or mucous membranes come in contact with materials or utensils contaminated with the body fluids of an infected person. Casual contact, however, generally does not pose a risk of infection. The CDC and other public health officials remain confident that the U.S. will be able to stop further spread of EVD through thorough case review, isolation of infected individuals, contact tracing of people exposed to the virus, and isolation of contacts if they develop symptoms.
If you work in an industry where bloodborne pathogen training is required, review that training with your employees. You do not need to develop new training, as the bloodborne pathogen training is designed to cover all potentially infectious diseases, including Ebola. Remind your employees that they have already been trained to use universal precautions, review the training so that it is fresh in their minds, and answer any additional questions they may have. This should help to put their minds at ease.
You also may want to prepare your Human Resources personnel and/or supervisors on how to respond to employee questions and concerns in an appropriate manner. Consider designating a point person or team to disseminate additional information if and when it becomes available. This will help ensure that a consistent message is conveyed to all employees and that employees’ concerns are treated respectfully and consistently.
What can I be doing now to help my employees?
The CDC and the Ohio Department of Health have issued various protocols and guidelines pertaining to the exposure and spread of EVD. It is important to continuously review and monitor the latest of these publications.
Review your emergency preparedness plans. Have an idea of how you are going to respond if an employee falls sick on the job. Require employees to immediately report any potential symptoms of Ebola. Collaborate with health authorities regarding issues or questions that may arise if you were to have a reasonable basis for believing that an employee may have been exposed to Ebola or may actually have the virus. Consider whether you will need an isolation room, a disinfecting strategy and a method of contact tracing with respect to an infected or exposed employee. Finally, although employee medical information needs to be kept confidential, if one of your employees is diagnosed with EVD, you will need to immediately communicate with all other employees to protect their health and safety.
If you work in the healthcare industry, keep abreast of the most recent guidelines issued by the CDC for healthcare workers and train affected employees on the recommended infection control precautions. Labor and trade organizations representing healthcare workers have called for the following universal practices:
In addition, because other infectious diseases may present symptoms similar to EVD, it is important to apply standard measures of precaution in all healthcare facilities – such as prevention of needle sticks and sharps injuries, safe phlebotomy, hand hygiene, rational use of PPE, regular and rigorous environmental cleaning, decontamination of surfaces and equipment and safe management of soiled linen and health care waste. It is also a good idea to review respiratory safety, including the proper fit an wear of a respirator, as well as proper cleaning methods.
As information relating to EVD is quickly changing, it is necessary within the healthcare industry to designate a point person or team capable of providing care to a patient who may present signs of infection. This point person, or team, also should be tasked with keeping abreast of the latest recommended procedures and disseminating that information to other caregivers.
How do I manage requests for leave?
Employees have the right to remove themselves from work situations if they reasonably believe that imminent, serious danger to their life or health exists. The OSH Act requires employers to provide employees a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Employees who voice safety concerns also have protection from retaliation. Employers also may face intentional tort or workers’ compensation claims for failing to provide a safe work environment. Each request for leave should be reviewed separately to determine whether leave is appropriate under the circumstances.
In addition, employers generally are not required to pay employees for any such requested leave. It is important to review applicable leave of absence policies and collective bargaining agreements to determine whether paid leave ought to be provided. Employers also will need to insure that any deductions from pay do not affect an exempt employee’s status under the Fair Labor Standards Act.
Where can I find more information about Ebola?
There are many organizations that provide up to date information about Ebola to the general public including:
