Q. Does requiring employees who travel to and from West African countries currently affected by Ebola (Liberia, Guinea, and Sierra Leone) to disclose their travel open the door for claims of national origin or race discrimination?
A. Probably not. Monitoring employee travel to West African countries currently grappling with Ebola outbreaks should not raise substantial national origin/race discrimination concerns, assuming that all employees are treated similarly, regardless of race or national origin. Employers should focus on identifying increased risk of Ebola exposure to employees, and not on singling out any national or racial group (such as immigrants of affected African countries) for increased scrutiny. See also ADA “regarded as” discussion.
Q. We are considering a requirement that employees who travel to any of these countries not return to work until after a 21-day waiting period without any symptoms. This requirement would be applied to all employees, but at present, the only employees of whom we are aware who have traveled to Liberia, Guinea, or Sierra Leone, or are planning future travel, are of West African descent. Would adopting this policy give rise to discrimination claims based on who it is most likely to impact?
A. Probably not. For purposes of evaluating national origin or race claims, the touchstone is whether employees in a particular protected class are being treated differently than employees outside of their class. If all employees, irrespective of national origin or race, are subject to the same policy, the policy is nondiscriminatory on its face.
Does the fact that this facially nondiscriminatory policy is, at a particular facility, only affecting employees of West African descent make it discriminatory? Potentially, under the theory that this policy has a “disparate impact” on certain protected groups (identified by national origin or race). That said, limiting the requirement to those employees who have traveled to a country currently effected by the Ebola outbreak demonstrates that the requirement adopted is appropriately limited and reasonably necessary to protect patient and employee safety.
Q. Does it make a difference if the 21-day waiting period is paid?
A. No. However, paying employees while they remain off work to confirm that they have not been infected with Ebola, though not required legally, further mitigates any potential legal exposure because it addresses any financial detriment to the affected employee. See also ADA “regarded as” discussion.
Q. I heard there have been Ebola cases in other West African countries, such as Nigeria. It sounds like those cases were contained and have not resulted in widespread outbreaks as has occurred in Liberia, Guinea, and Sierra Leone. Out of an abundance of caution, however, can we require disclosure of travel to any country in West Africa, or even consider requiring employees who travel to remain away from work upon their return for 21 days?
A. Yes. However, giving greater scrutiny to employees who travel to countries in West Africa that are not currently affected by the Ebola outbreak, or more broadly travel to other parts of Africa, increases the exposure to a claim for national origin or race discrimination by employees who may be negatively impacted. As the connection between the health risks posed by traveling to an affected area become more attenuated, policies could be perceived as unfairly stereotyping individuals of African descent. To avoid overly-broad policies and at the same time understanding that circumstances may change as additional individuals in West Africa and elsewhere are infected, prudent employers should monitor CDC and WHO guidance regarding those locations where confirmed Ebola outbreaks are active. Also, any such policy should not be limited to individuals who travel to their home-country but should apply to all travelers to the particular country.
Q. Should we be concerned about what employees and others at our facility are saying about Ebola and from where further infections might originate?
A. Yes. Healthcare employers should certainly be mindful of what is being said in the workplace about the Ebola outbreak, and should be prepared to address quickly comments or behavior that disparage, or even just single out, particular races, ethnicities, or nationalities. In Dallas, following the publicized events at Texas Presbyterian Hospital, there have been reports in the media of negative comments being made about Dallas’ African immigrant community. Any such comments or behavior in the workplace should be immediately reported and remediated to minimize allegations of harassment or a hostile work environment.
Q. What if an employee expresses concerns about working with employees who are members of immigrant communities from Liberia, Guinea, or Sierra Leone, fearing that such community members are at greater risk of exposure to Ebola due to travel?
A. Treating members of immigrant communities differently, such as placing them in assignments to minimize contacts with others, substantially increases the risk of a national origin or race discrimination claim because, without some objective indication about exposure to Ebola, the immigrant employees appear to be singled out or stereotyped primarily based on their country of origin and speculation about the increased exposure that might result. Employers should focus on objective ways of identifying potential risks that are unrelated to race or national origin, such as travel to countries specifically affected by the Ebola outbreak or exposure to individuals positively diagnosed with Ebola.
If other employees express concerns that members of particular ethnic communities are at an increased risk of Ebola exposures, healthcare employers would be well advised to address those concerns by highlighting the facilities’ policies and procedures in place to identify the circumstances that objectively give rise to greater risk of Ebola exposure, as well as the facilities’ policies and procedures to address such circumstances. Employees should be reminded that organizational policy prohibits stereotyping employees based on factors such as race and national origin, nor is such stereotyping an effective method of preventing the spread of Ebola or other diseases.