Q. Can we discipline a healthcare employee who is not involved in direct patient care and refuses to come to work because the employee has a generalized fear due to an Ebola patient who is being treated in the hospital?
A. Yes. An employee's duty to report to work on time and ready to perform his or her job duties is not excused based on a generalized fear of safety solely because an Ebola patient is being treated by the employer. The employee is not responsible for direct care of the Ebola patient and the presence of an Ebola patient does not change the healthcare employer’s normal attendance policies. The employee may utilize any discretionary leave subject to the normal leave policies. If the employee refuses to report to work, then the standard attendance policies that typically include progressive discipline should be followed. The same would remain true even if the employee has reported a perceived OSHA claim through internal or external complaint procedure. See also discussion of OSHA issues.
Q. Can we discipline a healthcare employee who is not involved in direct patient care when the employee engages other employees who are involved in direct patient care about the effectiveness of the hospital's safety protocols for Ebola patients who are being treated in the hospital because the employee has ill-founded concerns about workplace safety?
A. No. The National Labor Relations Act protects employees who engage other employees about the terms and conditions of employment, which includes workplace safety. Even if the employee's concerns are wrong, federal law protects the employee from retaliation. The healthcare employer should investigate the employee's concerns about workplace safety and take appropriate remedial action as the investigation dictates. It should also inform the employee (and other employees) regarding what steps it is taking to protect employees and patients. See also discussion of Unionization risks.
Q. Can we discipline an employee who refuses to work with another employee who has provided care to an Ebola patient?
A. Maybe. If the employer has followed its safety protocol for protecting employees who provide direct care to Ebola patients, then the employee should be educated on the safety protocols, assured that they have been followed for the employee at issue and given the opportunity to work with the employee before imposing discipline. If the employee continues to refuse to work then the healthcare employer has several options including but not limited to following its standard progressive disciplinary policies, granting a short leave as a “cooling off” period or allowing the employee to transfer to another area consistent with the employer’s normal processes. See also discussion of OSHA issues.
Q. Can we discipline an employee who refuses to work with another employee who has traveled to a country where the Ebola outbreaks are happening?
A. Yes, particularly if the employee who traveled to the country is outside of the 21-day incubation period and is showing no symptoms or has received a medical clearance before returning to work. Prior to imposing discipline, the employee should be educated on the Ebola return to work policy for employees who have traveled to countries where the Ebola outbreak is active. The personal healthcare information of the employee who traveled should not be shared. If, after being assured that the Ebola return to work policy has been followed, the employee still refuses to work with the employee, then progressive discipline should be followed consistent with the employer’s normal procedure.
Q. Can we discipline an employee who fails to follow the safety protocols for treating Ebola patients?
A. Yes. Any breach of safety protocols should be investigated and remediated and breach of the Ebola protocol should be handled like any other policy violation, which includes reporting to the appropriate regulatory authority if required. If there is an allegation or suspicion that an employee providing care to an Ebola patient has breached protocol, then the employee should be quarantined consistent with the protocol for a breach while the matter is investigated. When confirmation of the breach is determined, then discipline should be imposed consistent with the standard procedure for doing so. The employer’s duty to provide a safe workplace under OSHA requires that a breach in the safety protocol for Ebola patients be enforced and reported as dictated under the protocol and regulations, just as required with any potentially infectious disease. See also discussion of OSHA issues.
Q. What general considerations should be kept in mind when deciding whether to discipline an employee and Ebola is a involved directly or indirectly?
A. As a general matter and consistent with the employer’s policies and procedures, it is best to make a disciplinary decision that focuses on the employee's responsibility to deliver or assist in the delivery of quality patient care. To the extent Ebola issues impact patient care, employees should be subjected to discipline consistent with the normal practice. If the employee's ability to deliver patient care is compromised then discipline, as a general matter, should be delayed until the employee is able to perform is not impaired.
In an effort to avoid some of the “refusal to care” issues that can arise, some healthcare employers have created “Ebola crisis teams,” comprised solely of volunteers, who are provided extra compensation and additional specialized training.
Q. Can we discipline employees who falsely claim or suggest that they have been exposed to Ebola?
A. Whether intended as a serious threat, or just a joke in bad taste, an employee who makes a false claim concerning Ebola can find himself unemployed and possibly prosecuted. Given the public fear of Ebola, a false claim of Ebola contact is tantamount to yelling “Fire!” in a crowded theater.
All comments or discussions about Ebola exposure, or Ebola symptoms, should be treated seriously. If an Ebola claim appears to be false, however, then employers have the full range of disciplinary options available against those who make false claims, including termination of employment. Two recent instances reported in the news highlight the additional danger of criminal prosecution to those who even joke about Ebola exposure. In the first, a casino guest in Cleveland, Ohio claimed to a casino employee that his former wife had just returned from Africa infected with Ebola, and that he was playing cards to avoid being around her. Panic ensued as other casino patrons fled the premises. He has been charged with a felony count of inducing panic after it was found that his claim was false. In another case, a woman in Columbus, Ohio is under criminal investigation for telling a 9-1-1 dispatcher that her sister had a “107 degree” temperature and had recently been to West Africa. When police units responded with a hazmat team, she admitted that she had lied to get a quicker response from the ambulance.
Unlike in a criminal proceeding, employers need not have proof beyond a reasonable doubt that an Ebola claim is false to take disciplinary action against an employee. Nearly all states recognize that an employer need only have a reasonably held belief that an employee engaged in misconduct. Of course, employers should also try to be consistent in how they impose discipline to defend against claims that the discipline is a pretext for unlawful discrimination.
Note that this discussion applies principally to private sector at-will employees. Because government employees have due process rights that are not applicable in the private sector and unionized employees typically have special rights under a collective bargaining agreement, special care should be taken when dealing with situations involving those employees. Even for those, however, it’s unlikely that false Ebola claims would be protected from discipline.