October 2014

By: Walter J. Liszka, Esq.

With the recent problems that have arisen because of the Ebola virus’s extension to the United States and Spain (the death of Thomas Eric Duncan in Dallas and Madrid hospital issues), all employers may face a serious crisis in the future. With the first cases of Ebola transmitted outside the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria, where a month-long outbreak has killed more than 3,400 people, questions are arising as to how well-prepared other countries and employers are with the fear and potential disastrous consequences of an Ebola outbreak. According to the World Health Organization (WHO), Ebola is a virus characterized by a hemorrhagic fever (a fever accompanied by an escape of blood from a blood vessel) and is frequently fatal. As stated above, in the last month, over 3,400 people have lost their lives and the average fatality rate for Ebola exceed 50% of those affected. While the current outbreak is primarily affecting the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria, Ebola cases have been reported in the United States and in Spain.

While Ebola is considered as less contagious than some other diseases because it is not transmitted through casual contact or through the air – the Ebola virus transmittal generally occurs through direct contact of human-to-human transmission involving the infected person’s blood, secretions, organs, or other bodily fluids. It is also believed that it can be transmitted through contact with surfaces and materials that have been contaminated by the infected person’s blood or other bodily fluids. It is, at least at this time, believed that the Ebola virus has an incubation period of approximately one (1) month and that an infected person will not show signs of Ebola infection until after fourteen (14) days of exposure. The initial symptoms of Ebola can be a fever, fatigue, muscle pain, headache, and sore throat, and as the disease progresses, additional symptoms include vomiting, diarrhea, rashes, potentially impaired kidney and liver function, and internal/external bleeding.

While employers have a general duty to protect employees from recognized hazards in the workplace, the Occupational Safety and Health Act (OSHA) requires employers to provide a place of employment which is “free from recognized hazards that are causing or are likely to cause death or serious harm.” (29 U.S.C. § 654). It is probable that, at this time, Ebola would not be a consideration or concern for employers in protecting their employees. Unfortunately, if the number of reported cases rose and an employer’s workforce may be at risk due to exposure to an employee who is diagnosed with Ebola, employers may want to consider some of the following steps:

• Educate employees about how Ebola is spread and best practices to avoid transmission (this should be done by qualified medical personnel).
• Encourage employees to self-report any potential symptoms and to immediately put those employees on leave of absence if the symptoms develop.
• Establish a plan for employee notification and continuing work functions if Ebola is discovered. This may involve other work locations.
• Contact qualified medical personnel and establish a procedure for transporting employees to the hospital and disposing of and cleaning any potentially infected materials.
• Establish a plan that if an infected individual is identified in the workplace, for identifying those employees with whom the individual has come in contact, so that they can be monitored for symptoms. Also develop a plan to “sanitize/clean” the work location.

Clearly, Ebola would qualify as a serious health condition under the Family Medical Leave Act (FMLA) and any employee who may have come in contact with an infected individual would be eligible for FMLA Leave. As a practical solution, it may be in the employer’s best interest to put on leave any individuals who have been in contact with an infected person to alleviate fear, morale problems, and forestall the expanse of the disease. While at this time, Ebola may not be a major concern for most employers in the United States, the old adage of an “ounce of prevention is worth a pound of cure” could (would) certainly apply.

Questions? Contact Founder and Senior Shareholder Richard H. Wessels of Wessels Sherman’s St. Charles office at (630) 377-1554 or by email at rwessels@wesselssherman.com.