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UPDATE - Can we discipline employees who falsely claim or suggest that they have been exposed to Ebola?
UPDATE - Can we discipline employees who falsely claim or suggest that they have been exposed to Ebola?
by: Waverly Crenshaw

This post comes in response to the following question (from the orginial post FAQs on Employee Discipline):

 

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.




  

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Waverly D. Crenshaw, Jr.
615.850.8909
waverly.crenshaw@wallerlaw.com
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