“More Americans have been married to Kim Kardashian than have contracted Ebola,” sings one of many headlines in recent weeks, attempting to calm public anxiety over the contagiousness of Ebola since its arrival at Dallas, New York, and now Oregon. Although media sites and politicians maintain that Ebola is under control and that there is nothing to worry about, state governments are taking action. Yesterday, California’s Department of Public Health issued a quarantine policy restricting the activities of any person who has come into contact with anyone infected with Ebola traveling to and from geographic areas affected by Ebola, requiring a mandatory quarantine of 21 days. With the new quarantine policy in place and stepped-up efforts to prevent a pandemic, business owners may find themselves wondering: is Ebola a small business concern? What should businesses be doing to respond?
Protecting the Business: Business Interruption Coverage
At-risk small businesses concerned about Ebola should evaluate their insurance coverage to determine whether they have business interruption coverage. Business interruption coverage protects damages sustained by businesses due to disasters or events beyond the control of a business. It usually includes revenues a company would have made, if it had not closed, as well as costs and expenditures incurred to re-open. In fact, new business interruption insurance policies are being rolled out to provide specific coverage for Ebola-related losses. On the other hand, some insurance companies are now specifically excluding Ebola-related losses from standard commercial insurance policies. The company’s insurance broker can help provide options for exploring additional coverages to help mitigate risks.
Employees and the Workplace
Do small businesses have obligations to take precautionary measures at the workplace to comply with California’s Ebola quarantine? Generally, yes, as businesses are required to provide safe workplace environment for employees. However, the quarantine applies only to individuals who have actually traveled to or from California from an Ebola virus affected area, which includes Guinea, Liberia, and Sierra Leone. If an employee, colleague, or individual has traveled to such areas and is suspected to have come into contact with an individual with Ebola, the California Division of Communicable Disease Control, Center for Infectious Diseases, California Department of Public Health may be contacted. Violations of California’s quarantine order are considered a misdemeanor, and punishable by fine, imprisonment, or both.
Aside from actually coming into ill employees, there are additional important questions that businesses are asking: it is OK to question employees about their symptoms and travel to determine whether they are afflicted and contagious? If employees refuse to come to work out of fear, can employers take action against them? Can potentially symptomatic employees be sent home? Must they be paid?
Taking Time Off. Generally, an employee who needs time off from work will qualify for FMLA for a “serious health condition,” which can provide the employee the time needed to deal with any potential illness or care for family members, including children, who may be sent home from school or day care. There is no requirement that employers compensate employees for time taken out due to illnesses, including for Ebola, or to care for any family members who may be ill.
Employees Refusing to Come to Work. Can an employee independently decide to stay home and not attend work? Yes, in some cases. Under OSHA (Occupational Safety & Health Act), an employee can refuse to attend work out of safety concerns, as long as their concerns are reasonable. But given that there is a very low risk of Ebola presenting an imminent threat to employees in most workplaces, the employee would have to demonstrate that their concerns are legitimate. Simply refusing to come to work for an unsubstantiated reason is not permitted.
“No Travel to West Africa!” Is it acceptable for businesses to forbid employees from traveling to Sierra Leone, Liberia, and Guinea (or other affected areas)? Unfortunately, the answer is no on this one. Employers can make employees aware of the risks to their health by participating in certain activities, but businesses cannot prevent, prohibit, or force employees to avoid traveling to certain places in the world on their own free time. It is also unlawful for employers to discipline, demote, or otherwise take an adverse action against employees for not following their directions concerning off-site/non-work activities.
Sending Employees Home. In the event that an employee actually expresses that they may be ill with Ebola, or has come into contact with someone ill with Ebola, businesses have a general obligation to provide a safe workplace and must take all steps to ensure that the proper precautions are taken. Employers can require employees to wear personal protective equipment in the event of a pandemic, according to the EEOC (Equal Employment Opportunity Commission). Further, employers can also request potentially ill employees to work from home or take a paid leave of absence for the 21-day period recommended by the CDC before coming back to the workplace.
“Are You Sure You’re Not Sick?” What about asking employees to take medical tests or provide their medical records to confirm whether they are infected with Ebola or to verify Ebola infection? Asking employees about their medical issues is always a thorny issue. On one hand, if the employee is requesting leave under FMLA, it is normal and ordinary for employers to require medical certification before allowing the employee to return to work after granting leave. Inquiring about medical issues, on the other hand, is unlawful if made in connection with interviewing new candidates or offering employment; however, it is OK to ask about medical restrictions or disabilities when it comes to the employee’s ability to perform bona fide job-related functions. Employers should also be cautious of establishing medical screenings — even something as innocent as taking a temperature is legally considered a medical examination.
Selective Enforcement. Importantly, employers should be wary of taking precautions selectively against employees of African or west African descent, as that could also lead to claims of discrimination and/or harassment.
In a small minority are the businesses directly affected by Ebola, for example, those businesses who have had affected employees or consumers visit the premises, requiring lockdown and professional remediation to decontaminate the facility. These businesses may have a more difficult time rebounding. The bad press that can result from negative media or public attention can result in sharply declining revenues, for which there is no real remedy. Businesses that have been the subject of news reports concerning Ebola might find it tough to cope, since “truthful” news, however damaging, is not actionable. The best strategy is often to counteract bad press with good. Public relations professionals or reputation-rehabilitation companies can help bury negative articles or news with fresh content providing positive reporting on the business’s products, services, accomplishments, or community involvement. Although reputation rehab providers aren’t cheap, with enough time, the good content will outnumber the bad, and gradually business will go back to normal.
AXIS Legal Counsel’s Business and Corporations Practice provides legal advice to numerous businesses with a variety of legal matters, including business formations, contracts, deals, and transactions, business administration, corporate governance, operations, risk management / insurance, labor/employment matters, intellectual property, healthcare, crisis management, directors/officers, private/data security, technology, statutory/legal compliance, and business litigation. AXIS represents businesses, corporations, LLCs, LLPS, partnerships, and startups in need of a corporate lawyer, for business legal matters as well as business litigation.
For information on retaining AXIS Legal Counsel to represent your business in connection with any legal matter, contact firstname.lastname@example.org or call (213) 403-0130 for a confidential consultation. Axis’ managing attorney Rabeh M. A. Soofi is ranked as one of the “Top Women Lawyers of Southern California” by SuperLawyers, and is a Los Angeles Business Lawyer representing businesses and start-ups throughout Los Angeles and California.