The Americans with Disabilities Act (ADA) prohibits employment discrimination against individuals with disabilities, and employers could be exposed to claims of disability discrimination if they require employees to take leave because of a perceived risk of having contracted Ebola, i.e., limited contact with infected individuals, or travel to West Africa. Under the ADA, an employee can allege discrimination under a theory of having been “regarded as” disabled, even if he or she doesn’t actually have a disability.
Requiring “high-risk” employees (i.e., employees who have traveled to West Africa or had limited contact with infected individuals) to undergo medical examinations or periodically monitor their body temperature may also subject an employer to claims of disability discrimination. Federal guidance considers measuring employees’ body temperatures as a “medical examination.”
Under the ADA, employer may only conduct a medical examination if it is job-related and consistent with business necessity. Preventing Ebola from spreading in the workplace, especially in the healthcare setting, is likely to be job-related and consistent with business necessity, but the legal risk for the employer centers on deciding which employees are “high-risk” and should be tested. For example, it may not be “consistent with business necessity” to require all employees who have recently visited West Africa to undergo medical exams.
To reduce the risk of ADA liability, employers in the healthcare setting could consider adopting a different mechanism for Ebola detection. Instead of selecting and requiring certain employees to undergo medical examinations, employers could instead require all employees to have a body temperature of below 100 degrees Fahrenheit prior to starting their shifts. In this case, the employer could argue that this rule is a “qualification standard,” not a “medical examination,” because it is required of all employees. Under the ADA, “qualification standards” must also be job-related and consistent with business necessity. Federal courts, however, have held that for unlawful “qualification standards,” only employees with actual disabilities may file a lawsuit; for unlawful “medical examinations,” any employee subject to the medical exam can file suit.
On a practical level, employees are more likely to perceive an across-the-board job qualification (below 100 degrees in body temperature) to be fair, as oppose to the employer discretionally choosing which employees are “high-risk” and must be monitored. On the other hand, requiring all employees to measure their body temperature every day may be overly time consuming and expensive.
?In any event, healthcare employers must take care to avoid stereotyping based upon employee’s actual or perceived medical condition and focus on balancing the need to deliver high quality patient care with the rights of employees to be treated fairly under the law.