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Oct 29, 2014

By Eric B. Meyer

Five minutes ago, after taking the obligatory selfies and between games of Candy Crush, one of your employees texted from an Ebola quarantine tent to alert you that she will be out of work for 21 days while under observation for Ebola.

As an employer, what are your obligations? What workplace laws are implicated?

And of course, because half of you are thinking it, can you just fire her?

What federal laws may apply

For this post, I’m going to focus solely on the federal leave laws that may apply here, because otherwise, this would be a 10,000 word post (rather than 1,100, which is still bathroom reading material).

So if, for example, you want information on OSHA and Ebola (because, who doesn’t?) you can find that here. Or, if you want more general information on Ebola from the CDC, that’s right here. Plus, there may be some state and local laws that could apply to your situation.

And, notwithstanding anything you read below, be sure to run your workplace Ebola questions by your employment lawyer. Don’t rely upon the non-legal advice of an employment-law blogger, who happens to be an employment lawyer — just not your employment lawyer.

Remember: this is not legal advice!

Family and Medical Leave Act

I don’t know about you, but when this whole Ebola thing grabbed the U.S. headlines, the first thing I thought about was FMLA. Oh, you too? We must be kindred spirits. Totally HR-warped kindred spirits.

So, let’s deepen our cosmic bond.

Among other things, the FMLA affords eligible employees up to 12 weeks of leave in a 12-month period to allow an employee to treat his/her own serious health condition. If your employee in the Ebola quarantine tent has been with you for at least one (1) year, has worked 1,250 hours in the prior 12-month period, and works at a location that has 50 or more employees working within 75 miles of one another, then she is eligible to take FMLA — provided that she has a “serious health condition.”And, clearly, Ebola is a serious health condition under the FMLA.

But, what about the mere suspicion of Ebola?

Using FMLA leave for Ebola

Well, if the Ebola symptoms themselves (without actually having Ebola) are enough to qualify as a serious health condition (e.g., an illness that requires three or more days of continuing medical treatment), then FMLA still applies. Even if your employee had zero Ebola symptoms, but was being quarantined for observation, she still would likely qualify for FMLA.

That is, a serious health condition also includes “any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility.” I’m going to assume that an Ebola quarantine tent is the equivalent of a hospital.

What all of this means is that if your employee in the Ebola quarantine tent still has FMLA left to use, give it to her. If she has paid time off left in her bank and she requests to be paid while on FMLA (or you require that employees run PTO concurrently with FMLA), then pay her.

And don’t forget to require a fitness for duty certification as a condition of her return to work.

Americans with Disabilities Act

To those of you with less than 50 employees giving the middle finger to the FMLA in this situation, let’s chat, shall we? Don’t forget that when your employees calls in from an Ebola quarantine tent, the ADA applies to companies with 15 or more employees.

The ADA requires that employers provide a reasonable accommodation to an employee with a “disability,” if doing so will allow that employee to perform the essential functions of the job. And, as my readers should know, leave is one example of a reasonable accommodation.

But, before we get to that, there is the question of whether Ebola is an ADA “disability.” The ADA, which was modified in 2009 by the ADA Amendments Act (ADAAA), defines a disability using a three-pronged approach:

  1. A physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”); or,
  2. A record of a physical or mental impairment that substantially limited a major life activity (“record of”); or,
  3. When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).

What about temporary conditions?

Now, let’s assume that your employee in the quarantine tent actually has Ebola.

(If you regard her as having Ebola, there is no duty to accommodate her. Still, you can’t fire her because of the perceived Ebola either. But, like I said, let’s assume that she actually has Ebola…)

My layman’s understanding of Ebola is that it is a temporary condition. Historically, the ADA did not cover temporary conditions. Indeed, back in the day, in a pre-ADAAA decision, the Third U.S. Circuit Court of Appeals in Philadelphia, where I practice, ruled that pneumonia, another temporary condition, is not an ADA disability.

However, the new ADAAA definition of “disability” is meant to be broad. And the EEOC has interpreted “disability” under the ADAAA to include both permanent and temporary conditions.

EEOC regulations clarify that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability. Earlier this year, I discussed here how the Fourth U.S. Circuit Court of Appeals in Richmond, VA. concluded that a temporary condition, if bad enough, could be an ADA disability.

A reasonable accommodation

Now again, I’m no Ebola expert, but the little I’ve read about it leads me to believe that Ebola can substantially limit one or more major life activities even where it lasts less than six months. Thus, there is a strong argument that Ebola is an ADA disability and the statute will protect your employee in the tent.

Now that we’ve determined that Ebola could very well be a disability, would 21 days of leave in an Ebola quarantine tent be a reasonable accommodation?

If you are an FMLA-covered employer, and your employee has unused FMLA, then that time off would unquestionably be an ADA reasonable accommodation. If, however, your employee has already exhausted her leave, or you have fewer than 50 employees, then you’ll need to consider the undue hardship factors to determine whether 21 days of leave is reasonable.

If the leave is reasonable, it is unpaid (unless the employee has PTO to use) and you can fill the position in the interim.

If, instead, you determine that 21 days of leave poses an undue hardship, consider — warning, this is about to get extra wacky — what would happen if your employee tells you, “Well, if I give the CDC the slip and can make it into work tomorrow, can you give me some light duty work? Maybe name me Employee of the Month?”

A threat to others in the workplace?

Your response should be something along the lines of, “This dreamy employment-law blogger, Eric Meyer, the one who doesn’t give legal advice out on his blog, maybe you’ve heard of him? No? Well, he said to tell you that we reasonably believe that your Ebola makes you a direct threat to others in the workplace.”

(Presumably, you’ve vetted this with your lawyer to confirm).

Indeed, prior to allowing that employee to return to work, the ADA permits you to require that the employee be certified as fit for duty. (This would likely also hold true if the quarantined employee did not have Ebola).

So, there you have it. The quintessential HR Guide to dealing with leave issues associated with an employee in an Ebola quarantine tent. Geez, did I really just do over 1,100 words on Ebola and employee-leave issues?

I’m exhausted. Someone get me a stiff drink and a Grantland application.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.