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We have been at ground zero here in Dallas the last few weeks as the Ebola scare began with Thomas Eric Duncan and spread to two Presbyterian nurses that treated him.  (It was quite surreal to see a news helicopter hover over the home of one of the nurses’ which is only a few blocks from my house.)  Thankfully, Nurse Nina Pham and Amber Vinson beat Ebola and we have no active cases (knock on wood) here in Dallas.  Unfortunately there are ongoing cases in the US and the epidemic in Africa.

Ebola and other disesases present a number of issues for employers both in terms of protecting employees from the disease and protecting the privacy rights of the employee.  The scary thing is how many people a single person can come in contact with both from day to day activities and if they travel. Luckily, we have not seen a child come down with a case and then potentially expose a school.

So to begin with, what does an employer need to do in terms of protecting its employees?  What if an employee tests positive for Ebola?  What if an employee travels on an airplane with someone who has Ebola?  What can I tell my employees about employees who either have Ebola or were exposed?  All of these things have happened here.  The answers are not easy as we attempt to balance the priviacy rights of employees with the welfare rights of employees.

The first issue for any employer is what can it ask the employee about his or health condition?  Generally, an employer cannot ask anything about an employee’s health condition unless it relates to the job and there is a business necessity or (here is the key one) the employee’s medical condition poses a direct threat to the health or safety of the employee or others. Otherwise, the employer risks an ADA claim.

Unfortunately, we have no guidance from the EEOC on  Ebola yet but there was a Pandemic Preparedness article put together for the H1n1 Virus. The advice turns on whether a pandemic has been declared by the World Health Organization.  With respect to the African ebola outbreak in 2014, a pandemic has not been declared.  Instead the WHO has declared it to be a “Public Health Emergency of International Concern”.

As described in the guidelines, the employer is fairly limited in what it can do vis a vis an employee pre-pandemic.  For example an employer cannot:

  1. Ask if the employee has a compromised immune system that would make the employee susceptible to influenza; and
  2. Rescind a job offer if the applicant has a medical condition that would make the applicant susceptible to influenza.

Once the pandemic is declared the employer has a few more options.  For example:

  1. An employer may send home an employee if they display influenza-like symptoms.
  2. Ask an employee if they experiencing influenza-like symptoms.
  3. In some circumstances ask if an employee is returning from travel to locations where there is an outbreak; and
  4. Encourage telework and require infection control practices like handwashing.

There are a number of scenarios and questions contained in the article that would appear to relate to EBOLA as well.  Obviously, this a developing topic and the employer has to balance the privacy/health of the employee with that of the employer – not easy!  There is no one size fits all on this issue and I reccomend reaching out to a lawyer to consider before taking any action.

Today Texas announced its guidelines with respect to observing individuals with potential exposure.  It remains to be seen how these new guidelines will play out in the workplace.  Hopefully, we won’t find out in the near future.

 

                                       

Last week, we discussed the effect obesity would have on employers in the future because of weight related health issues. A very interesting article was published in the Texas Lawyer this week addressing the rising number of  Americans with Disabilities Act claims based upon obesity. The take away from the article, which at this point is only available by subscription, is that the EEOC and others are filing more and more obesity based lawsuits. The "stronger" cases have situations where the obesity is caused by some other type of impairment be it mental or physical – there was some other explanation other than overeating.  

The 2008 amendments to the ADA expanded what is considered a disability. Though the EEOC does not track obesity cases, the article maintains that there has been a spike in these types of claims based upon a review of recent cases.  We recently profiled one of the cases discussed in the article, which involved a Louisiana woman who claimed she was fired because of her weight.  The EEOC settled with the employer for $125,000.

So what is an employer to do? Number one, treat requests from overweight employees for some type of accommodation seriously.  It could be covered by the ADA.  Second, and this is totally self serving, talk to a lawyer.  As with most employment situations, there is no one-size-fits-all answer and a review of the circumstances and laws in your jurisdiction is necessary.

These days, it is usually a good assumption  that an alleged disability actually falls within the ADA.   Assuming it does, the employer then needs to make a determination as to whether a reasonable accommodation will permit the employee to fulfill the essential functions of his/her job. Usually this will entail an analysis of job descriptions (which are critical for this type of analysis) and whether the employee can do the work. At this juncture, it is probably better for employers to simply assume that obesity is covered and make the reasonable accommodation analysis.

                                              

Last week, the EEOC provided new enforcement guidelines to be used for determining whether the use of arrest and conviction records is proper in the hiring process as it relates to Title VII.  There has been a fair amount of electronic ink spilled on this topic and I have identified some good sources below for review.

The take away from the article and new guidlines is  that employers cannot use arrest and conviction records with impunity.  Unfortunately, it seems counterintuitive that an employer could not disqualify a potential candidate based upon a conviction.  The EEOC seems to be saying that if that policy is not uniformly applied or if it has disparate impact, there could be ramifications against the employer. 

I understand the distinction the EEOC makes between conviction and arrest records, although arrests usually are the result of some underlying conduct that the employer should consider.  That said, it seems a little much that the EEOC is going out of its way to prepare these new guidelines and regulations with respect to convicted individuals.  I am all for rehabilitation, but ultimately, the employer should be able to eliminate job candidates based upon convictions, when that criteria is uniformly enforced. 

Below are some articles you might consider and the regulations from the EEOC:

Guidance from the EEOC –http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Q&A from the EEOC – http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

Connecticut Lawyer Daniel Schwartz on the Issue

Ohio Lawyer Jon Hyman’s Take

The Delaware Employment Law Blog Weighs In

                        

A few weeks ago we discussed a Texas employer hiring new employees based upon their Body Mass Index.  The dangers of considering weight in employment decisions were recently exemplified in a press release from the EEOC. 

In that release, it was announced that a treatment facility for chemically dependent women and children was paying $125,000 to settle a disability discrimination suit filed in September 2010 by the EEOC.  The suit alleged that the employer violated the ADA because it fired a former employee because of her disability, severe obesity, even though she was able to perform the essential functions of her job.  Unfortunately, the employee died prior to the suit being filed.  The EEOC’s take on the settlement:

All people with a disability who are qualified for their position are protected from unlawful discrimination,” said EEOC General Counsel David Lopez.  “Severe obesity is no exception.  It is important for employers to realize that stereotypes, myths, and biases about that condition should not be the basis of employment decisions.

Courts have previously concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder.  Hiring or firing policies based on weight may be actionable.  Employers need to tread lightly if they are going to consider weight in a hiring/firing decision.(H/T disability law.blogspot.com)                      

                                

Next Friday, March 2, I will be appearing on Stephanie Thompson’s Proactive Employer Employer Podcast.   Stephanie’s podcast is top notch and addresses a wide range of HR related issues.  We will be discussing hiring/firing issues as well as post-employment covenants.  Here is a little information about the podcast:

 

The Proactive Employer Podcast, hosted by Stephanie R. Thomas, is the leading weekly broadcast dedicated to EEO compliance and employment litigation risk management. The podcast covers a wide range of topics – HR best practices, social media in recruiting and hiring, compensation analyses, terminations and reductions in force, FLSA issues, gender and race discrimination, religious discrimination, disabilities, Department of Labor, EEOC and OFCCP issues, and current issues in employment law. Podcast guests include top employment lawyers, industry professionals, and educators. The listener base includes HR professionals, corporate counsel, employment attorneys, expert consultants, and others interested in EEO compliance issues in the United States and around the world.

The podcast airs every Friday morning at 8:30 AM Eastern on BlogTalkRadio, and is available for on-demand listening the same day here or via iTunes.

 

 

          

Today Bridget Blinn of my firm and I had the privilege of speaking to the FPA of Dallas/Fort Worth.  Below are some helpful links I referenced during the presentation: