Ebola in the workplace: where do employers stand?

As the Ebola pandemic spreads, anxiety about the disease is increasing.

The virus is highly dangerous, and has proven its capability to spread quickly and ruthlessly. For these reasons, it is advisable to take action if an employee shows symptoms, or if there is reason to believe they may have been exposed to the Ebola virus.

Where does an employer stand if they have reason to be concerned that an employee may be infected?

“An employer can require an employee to stay away from work pending them providing a medical clearance that they are safe to attend the workplace,” Blair Scotland, partner at Dundas Street Employment Lawyers said.
 
“The question however is whether this is on pay or not. Where an employee is ready, willing and able to work, but the employer won’t let them, then the general expectation is that the employee is paid. The question is then around whether or not objectively the employee is “able” to work, and that may well come down to medical evidence. If however an employee accepted that they were too ill to work and their entitlement to paid sick leave had run out, then generally they would be unpaid.”

Michaela Moloney, Special Counsel at K&L Gates, supported Scotland’s statement, and said that employers are not limited to ensuring that their employees are healthy.

“Employers have an obligation to take all reasonably practicable steps to ensure the health and safety of their employees, contractors and anyone else potentially impacted by the conduct of the business,” Maloney told HC. “This includes clients or members of the public visiting the employer's premises.

“If there is a reasonable basis for suspecting the employee is infected, it would be permissible for employers to take steps to protect that employee and other employees. In fact, failure to take such steps could amount to a breach of OH&S legislation.”

Maloney said that employers have the right to direct their employees to see a nominated doctor to determine whether they are fit and safe to be in the workplace – an employer can deal with such issues in workplace policies or an emergency management plan.

“Usually, if employer had reason to believe that an employee was unsafe to be in the workplace, the employer would take the practical step to have a discussion  with the employee with the intended outcome of an agreement that the employee would not attend work,” she added. “Consistent refusal could eventually become grounds for termination.”

Scotland also told HC where an employer would stand if an employee refused to provide proof that they were fit to be in the workplace.

“An employer cannot require an employee to undergo any particular test – they can however require them to produce a medical clearance,” he said. “If they cannot or will not do so, the employer can exclude them from the workplace until they do. Ultimately if the employee kept declining then it could be open to the employer to dismiss, but it would take time and a fair process.”

Maloney pointed out that it is important to remember that there is a rule against terminating employees for absences caused by illness or injury.

“It is important to ensure that actions are not discriminatory and that they comply with provisions,” she said. “The difficulty is in finding reasonable grounds to suspend an employee for health reasons. If something like this happens – something which threatens public health – and employers are unsure what to do, they can seek assistance and guidance from the department of health in each state.”