By: Dan Cohen – 10/14/14
The first Ebola death on U.S. soil have all Americans wondering whether America is up for the challenge of stopping the spread of this dreadful disease. Although I am confident we can slow the spread of Ebola, I am not optimistic at all that we won’t have more cases. Let’s face it: we have a porous border; a government that places as much priority on our international reputation as it does our national security, and a population that has grown way too complacent with most everything that goes on! Does anybody really think screening passengers at five airports will be adequate, or do others like me think stopping trespassers from getting on to the White House grounds would have seemed far easier.
Enough politics for now! I want to focus on the question that could come up if more Ebola cases occur here. What is an employer’s responsibility or exposure here? Is Ebola a disability under the Americans with Disabilities Act? Would an employee with Ebola pose a direct threat to the safety of the workforce? These are questions that have probably not been contemplated by the ADA. Even though it is of short duration if the infected individual survives the disease, which argues it should not rise to the level of an ADA disability, I will assume that the virus would gain status as a disability or at least create the perception of one. The direct threat defense certainly sounds like it would come into play, and would be my argument why an employer does not have to allow the threat into its workplace. I would have little difficulty standing in front of a court or jury and arguing that my client had no obligation to accommodate an employee returning to work from a three week vacation in Liberia. I would argue that the employee posed a direct threat to the safety of the other employees, and the consequences of not airing on the side of caution could be deadly.
Even though my argument would likely be based on “stereotypes and assumptions” that ordinarily would be improper under the ADA, most would say the employer was taking the moral high road of protecting its other employees. Of course, if the employer placed the returning employee on a paid leave for the duration of the 21 day incubation period of Ebola, the employee would have no wage loss damages. A work from home accommodation might be an option as well during the incubation period. These alternatives make far more sense to me then taking no precautions and just welcoming the employee back into the workplace.
Now, let’s shift gears and talk about the airplane cleaning crew that went on strike in New York. The NLRA allows employees to engage in safety strikes even where a collective bargaining agreement contains a no strike provision. While this is a rarely used exception to the general rule that an employer can discipline and even discharge an employee who strikes in violation of a collectively bargained no strike provision, I would suggest that employees who clean airplanes coming from West Africa and even Europe might have a valid safety concern. Moreover, in the absence of a contractual no-strike provision, an orchestrated safety strike is probably protected concerted activity and participants have the protection of Section 7 of the NLRA. Employers faced with this dilemma must refrain from overreacting and firing the protesting workers. Replacement workers are a possibility, but don’t be surprised if finding replacements is a challenge. I don’t know about you, but I am not rushing to respond to an ad to clean airplanes returning to the U.S. from international flights. Employers may just have to spend extra money to provide their employees with additional personal protective equipment.
I hope this is merely an academic exercise for all of us, and that we are able to contain the Ebola disease, or better, eliminate the threat altogether.