Best Ohio Employment Attorneys Answer: Can I Be Fired Because I Have Been Exposed To The Ebola Virus? Is Ebola Exposure A Disability? Can I Take FMLA If I Have Been Exposed To The Ebola Virus, Even Though I Am Not Sick? Do Workers Exposed To Ebola Have Any Other Rights?
Given all the news in past month about the Ebola virus (especially here in Cleveland) and now that a real scare is dying down, I began thinking about how exposure to this virus might implicate exposed employee’s rights in the workplace. After all, numerous businesses closed their offices and sent certain employees home for as long as 21 days. Could an employer try to avoid the Ebola virus by just firing anybody who has been exposed? As explained below, terminating an employee who is infected by the Ebola virus or who has been exposed to the Ebola virus raises a number of legal issues.
The first question that has to be answered is whether having Ebola infection or being exposed to Ebola is a disability. The Americans with Disabilities Act (“ADA”) defines disability as any mental or physical impairment which substantially limits one’s ability to engage in certain major life activities. While an actual infection would certainly qualify as a disability under the ADA, mere exposure to Ebola (without actual infection) does not typically impair someone. Thus, someone who is merely exposed to the virus will generally not be considered disabled for the purposes of the ADA.
However, the ADA also makes it unlawful to discriminate against someone who is perceived or regarded as having a disability, so long as that perceived disability is not transitory or minor. Because Ebola has a very mortality rate for those who contract it, the ADA would most likely protect employees who are discriminated against or terminated because they have been exposed to the Ebola virus.
There are also whistleblower considerations. Under Ohio R.C. § 4113.52(B), it is unlawful to discharge or otherwise take an adverse action against an employee who has reported a hazard to the public health or safety. Thus, if an employee were to refuse to come to work because they reasonably believed that their health was in imminent danger due to the presence of infected person, the employer should not be able to terminate that employee without facing exposure for a whistleblower violation.
The Ebola virus could also raise issues surrounding Worker’s Compensation retaliation. If an employee were exposed to Ebola or infected while travelling for work, they would be entitled to file a claim for Worker’s Compensation benefits. If an employee were to file a claim for Worker’s Compensation benefits due to Ebola, and was subsequently terminated or had some other adverse employment action taken against them, they would have a strong claim for Worker’s Compensation Retaliation under Ohio law.
National origin discrimination could also be implicated by the Ebola virus. For example, if an employer were to refuse to hire someone from Africa because of Ebola fears, or if an employee of African descent were terminated after returning from a visit to Africa, such conduct could raise issues of national origin discrimination.
Finally, an employee who has been exposed to Ebola or is infected by it, or who has an immediate family member who has been exposed or infected, will most likely qualify to take leave under the Family Medical Leave Act (“FMLA”). Under the FMLA, an employee who works for a covered employer (50 or more employees in a 75 mile radius) is eligible for leave if he or she worked for the employer for at least twelve months, and for at least 1,250 hours over the twelve months immediately preceding the need for leave. An employee can take FMLA for their own serious health condition, or for the serious health condition of a family member. It is unlawful for an employer to interfere with the right of an eligible employee to take FMLA, or to retaliate against an employee for taking FMLA. Thus, the question of whether an employee with an Ebola infection is covered by the FMLA is easy.
Whether an employee who has merely been exposed to Ebola is eligible for FMLA is a trickier question. If you are quarantined or in the hospital due to your exposure, you would most likely qualify for FMLA even if you had no symptoms, because under the FMLA, any medical condition which due to incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility is considered a “serious health condition.” However, if no one has quarantined you and you aren’t in the hospital, you may not qualify for FMLA. The issue then becomes about what the employer wants to do. It is probably safe to assume that an employer would rather keep an exposed employee out of the office until it is certain they are not infected. However, as discussed above, it would be unlawful to terminate that person, or to take any other adverse action against them while they are out of the office if it is due to a perceived Ebola infection. This may be why we have seen so many stories about employees being put on paid leave while they wait out a possible infection.
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