Ebola is causing anxiety and concern worldwide. In our mobile and complex world, with people moving freely across continents, it is impossible to ignore the potential impact of the virus.
The World Health Organisation says the risk of becoming infected with the virus during a visit to the affected areas is extremely low. Nonetheless, employers have an obligation to ensure they have a safe workplace, which should include taking steps to guard against the risk of infectious diseases.
An effective strategy to protect employees and to eliminate any unnecessary panic should include keeping abreast of government advice and communicating this to employees.
Employers should update and circulate contact details and emergency numbers, carry out risk assessments, ensure good hygiene practices in the workplace, and train employees on the key facts and risks.
They should also update policies and procedures, such as sickness absence, dependent-care leave, and flexible working arrangements that may be affected by an outbreak of Ebola.
Information should be shared and displayed informing employees of symptoms and the steps they should take if they suspect they may have come into contact with someone with Ebola, including details of the nearest medical centre equipped to deal with outbreaks. Staff should be told to report to human resources if they have been to a high-risk destination or if they have been in contact with someone who has, whether they are exhibiting symptoms or not.
Employers may wish to require staff who have travelled to, or been in close contact with someone from, a high-risk area to be placed on enforced leave or require them to work from home until it is clear they are not infected.
Employers should carefully review internal policies and contracts of employment to check whether there are any provisions enabling them to do this lawfully. If there are no such provisions (and depending on the applicable laws in the relevant jurisdiction), they should weigh up the risks of the “quarantined” employee bringing a claim with regard to the company’s general duty of care towards its employees.
The right to screen employees, or require them to attend medical appointments, is a sensitive balance between the obligation to provide a safe workplace and the obligations of data privacy and confidentiality. Whether it is proportionate and reasonable to ask an employee to undergo a screening test, and the potential options if the employee refuses, will also depend in part on the medical advice received.
All decisions need to ensure the steps taken do not reflect a discriminatory approach that may contravene anti-discrimination legislation.
The Duty of Care
Employers generally have a duty of care towards employees at work and on business travel – as well as to third parties visiting the employer’s premises, in addition to obligations under local health and safety laws.
Employers should take proportionate and sensible action to protect employees and third parties on their premises. This includes cancelling business trips if government and insurance guidelines advise against travel to specific destinations. Failure to follow such advice could put your business at risk of negligence or health-and-safety-related claims should an employee become infected on such a trip. This could even invalidate your insurance policies.
While employers should be sympathetic towards employees who have genuine and reasonable fear that attendance at work or international travel could put them at risk, they should also be wary of employees taking advantage of the situation.
Employers should ensure their disciplinary and absence policies deal with any employees who unreasonably refuse to attend work or travel for work through fear of contracting the virus.
Ebola is an international concern and multinational employers should consider implementing advice and plans across their worldwide operations. The key issues to consider in respect of each jurisdiction include: ensuring the employer has complied with its duty of care and obligations in respect of health and safety towards employees, contractors, clients and visitors; reasonably balancing the rights and obligations of employers and employees; providing employees with access to up to date information and support; putting in place appropriate medical arrangements; and personal injury liability.
Pattie Walsh is a partner and head of DLA Piper’s Asia-Pacific employment practice. She writes extensively for legal and HR publications, with a particular focus on multi-jurisdictional employment work.
DLA Piper is a global law firm with 4,200 lawyers located in more than 30 countries throughout the Americas, Asia, Europe and the Middle East