By Steve Thorpe
Legal News
The current outbreak in west Africa, beginning in March 2014, is the largest and most complex Ebola outbreak since the Ebola virus was first discovered in 1976. There have been more cases and deaths in this outbreak than all others combined and it’s the first time that the U.S. has been seriously concerned about a possible spread here. Ruthie Goodboe, a shareholder in Ogletree Deakins’ Detroit office, serves as a member of Ogletree Deakins’ Ebola Rapid Response Team. The team comprises six lawyers from a number of the firm’s offices and practice groups, including Employment Law, Workplace Safety and Health, and Traditional Labor Relations. In her role, Goodboe counsels employers on the traditional labor issues related to the Ebola crisis, such as dealing with protected concerted activity under the NLRA, collective bargaining obligations, and managing the employee relations aspects.
Thorpe: How and when did the firm decide to create the team?
Goodboe: The decision to form our Ebola rapid response team was really an extension of our client service philosophy. With the diagnosis of the first Ebola case in the United States, and the significant media coverage that followed, our attorneys began receiving a multitude of requests for guidance relating to the outbreak, including questions about safety and leaves of absence. Ogletree Deakins wanted to provide our clients with coordinated, timely advice on the Ebola epidemic that appropriately takes into account employment, labor, and workplace safety concerns. With members from a number of different practice areas, and various offices across the country, the team, which was formed in early October, is able to quickly respond to client inquiries and provide relevant and accurate answers to their questions related to Ebola. By making this resource readily available to our clients, we are able to provide practical guidance immediately, which in turn helps our clients respond to issues properly and helps minimize some of the anxiety and stress being felt by both employers and employees as issues arise.
Thorpe: What is your background?
Goodboe: I’ve been practicing labor and employment law for nearly 20 years, focusing for the last ten or so years almost exclusively on assisting management side clients with traditional labor issues. I work with all levels of leadership to develop and tactically implement labor relations and human resource strategies within each employer’s business model and industry and also assist in the creation of training programs with the goals of enhancing employee-management communication, developing a well-rounded, compassionate and objective management team, minimizing risk and avoiding litigation. Actually, law is my second career. For ten years I worked in public relations, spending more than half that time working closely with human resources in healthcare settings. That experience has shaped my practice. Although I counsel and represent employers of varying sizes in a variety of industries in all aspects of traditional labor law, many of my clients are related to healthcare and the provision of health related services.
Thorpe: Tell us a bit about the other members of the team.
Goodboe: Ogletree Deakins carefully selected the members of our rapid response team to ensure that we are able to quickly counsel employers on the full range of workplace issues related to Ebola. The team comprises attorneys with various areas of practice and experience, including Eric Berezin and John Shedden, who regularly counsel clients on workplace safety and health matters, Mike Eckard and Maria Danaher, who have vast employment law experience, and Tom Davis, who focuses his practice on traditional labor relations. The varied backgrounds, personal knowledge and unique experience of the individual members allow the team to identify and respond to both the obvious and esoteric issues related to managing a workforce facing the challenge of Ebola.
Thorpe: What are some of the Ebola issues an employer might face?
Goodboe: While the risk of Ebola infection in the United States is extremely low, generally an employer’s initial concern is for the safety of employees in light of the isolated cases of infection in the United States over recent weeks. As a result, one of the first issues an employer faces is responding to circumstances related to a specific employee, which raises concerns about Ebola. This may be an employee who is known to have recently traveled to West Africa, an employee’s association with individuals of West African origin or Ebola healthcare workers or some other indication the employee may have been at risk for exposure to the Ebola virus. Similarly, many employees are raising concerns about working near individuals who – whether justified or not – are perceived as being at risk for an Ebola infection.
For instance, the Americans with Disabilities Act (ADA) prohibits discrimination based on an employee’s disability or perceived disability, but does allow employees to be excluded from the workplace where that employee poses a direct threat to himself or others.
Other issues related to the ADA include whether an employer can impose bans on personal travel; require mandatory leave or quarantine (paid or unpaid); reassign employees, or request medical information and exams of employees with potential exposure. But what about those employees who may work with or near an at-risk employee? A variety of laws address how employers may respond to co-workers who raise concerns about their own safety or that of their workplace. While employees must be protected against discrimination based on a perceived disability (potential exposure to the Ebola virus) and national origin under Title VII of the Civil Rights Act (employees treated as if they were exposed based on their home country), co-workers also have certain rights. For example, the Occupational Safety and Health Act (OSH Act) obligates employers under a general duty and specific standards to provide a safe workplace, but it also prohibits retaliation against employees who raise workplace safety concerns. Employers must be mindful how they react in these situations, because both the OSH Act and the National Labor Relations Act (NLRA) give employees the right to refuse to work if they believe the environment is unsafe. Even when an employer moves to protect employees by either implementing new practices or changing work rules, there may be issues such as where employees are represented by a union. In that scenario, the employer may be obligated to negotiate any such changes before implementing them or risk violating the NLRA or breaching a collective bargaining agreement.
Thorpe: What can an employer do in advance to prepare to deal with Ebola?
Goodboe: We recommend that each employer evaluate their worksite’s unique circumstances and develop an appropriate Ebola preparedness plan. As a critical part of these plans, employers should communicate to their employees the company’s awareness of the issue and the steps taken to make sure employees are safe while performing their job duties. Clear and consistent communication with employees is critical in order to reduce fear and to demonstrate positive employee relations. Since the actual risk is low, the main goal of these actions is to alleviate fear without overreacting. The following are some actions you may want to consider: Identify a leadership team who will be responsible for developing and implementing the preparedness plan; Identify a resource (e.g., person, department, hotline) for employee questions and concerns including reporting of potential exposure; Stay current on the Ebola virus, travel bans, quarantine and monitoring guidelines/requirements through CDC and WHO websites; and provide all employees with Ebola education training that is appropriate to the exposure risks.
Thorpe: The employer and employee have their own legal protections. How hard would it be, in the case of Ebola, to balance those rights, especially considering the overarching public safety concern?
Goodboe: Let’s be frank. Ebola is scary and fear often makes it more difficult to approach issues in a rational and objective manner. But while balancing employer and employee rights against the public safety concern may seem daunting, it is manageable. Remain calm, get organized and be vigilant. Employers should constantly educate themselves with the most recent credible information relating to the Ebola virus. Look for guidance from reliable sources such as the CDC, WHO, and state and local health departments. Ensure your organization is in compliance with all relevant laws, i.e. ADA, OSH Act, NLRA, Title VII and the Fair Labor Standards Act. When in doubt as to the appropriate course of action, seek legal counsel. Review, update, and refer employees to documented policies that have already been communicated. Most important, maintain open lines of communication with employees.
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