Employers scramble to address Ebola concerns

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It's no longer just hospitals and health care companies that are worrying about whether their workers may have been exposed to Ebola.

FirstEnergy on Thursday said two of its employees will work from home with pay for 21 days after it learned they came in contact with the second nurse who contracted Ebola in the Dallas hospital where she worked. "We're just trying to do the right thing," Todd Schneider, spokesman for the Ohio-based energy company told CNBC, about the decision.

An increasing number of companies have been seeking legal advice on what to do if they find themselves in a similar situation. The answer may not be as simple as it seems.

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"The most common question right now is: If I have a person returning from an affected country or a neighboring country, should I make them stay at home?" said Howard Mavity, an attorney with Fisher & Phillips who co-chairs the firm's Workplace Safety and Catastrophe Management Practice, who has fielded several calls from manufacturers with employees from West Africa.

The answer, generally, is no. While it may be tempting, doing so could set the employer up for a complaint to the Equal Employment Opportunity Commission. They're better off following the lead of the Center for Disease Control and Prevention, he said, which recommends anyone who's traveled to an Ebola-affected area monitor themselves for symptoms for 21 days but doesn't impose movement restrictions. (If employees disclose they had close contact with an Ebola patient, however, that's a different story. Medical evaluation is recommended then, even if the person has shown no symptoms.)

Mavity recommends using the same questions the CDC askssuch as which areas they visited and whether they've experienced any of the known symptomsand making sure the worker doesn't have a temperature. Some companies and boarding schools, he said, are actually taking such steps already and having a nurse take temperatures daily. But employers need to be wary of violating a worker's right to privacy or of exposing them to public embarrassment by singling them out, even if it's well-intended. "Do not say: 'Joe's okay; we're following protocol,' " Mavity said.

Employers should also be wary of questioning those who have ties to West Africa outside of the Ebola-affected countries on the CDC list with widespread transmission (Liberia, Guinea and Sierra Leone). Otherwise, they may get into issues of discrimination based on race or national origin, Thomas Benjamin Huggett, an attorney who specializes in workplace safety issues at law firm Littler Mendelson, told CNBC.

Co-workers' concerns should be handled gingerly, as well. "Generally the law is very insensitive about employers concerned about co-workers," Mavity said. Those rules harken back to the civil rights era, when companies tried to exclude black employees based on assertions their presence would upset their co-workers or customers.

"We've had this come up not just with Ebola. It's also been with tuberculosis, hepatitis, HIV," he said, adding that the best response is to share information from the CDC and assure them the situation will be monitored. "Educate employees right now to disabuse them of any conspiracy-type notions," said Mavity.

Such concerns became more pressing on Wednesday when the CDC said it would begin contacting the 132 passengers who flew on a Frontier Airlines flight Oct. 13 from Cleveland to Dallas/Fort Worth with the nurse who tested positive for Ebola the next day.

In the case of FirstEnergy, one of the employees was notified by the Center for Disease Control and Prevention of contact while the second FirstEnergy employee self-identified as possibly having contact, the company said in a statement, which also noted that neither have contact with the public as part of their jobs.

Once the employees told the company they had come into contact with the nurse, FirstEnergy told the workers it would be in everyone's best interest if they worked from home with pay, and the employees agreed, Schneider said. "We have an emergency plan that was in place," he said.

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Identifying employees who might be at risk, though, can be a challenge. Unless they're in the health or food preparation business, employers may not have rules about employees' notifying them if they've come in contact with someone who has an infectious disease, Huggett said. So a lot depends on voluntary self-reporting.

Under the Americans with Disabilities Act, employers can make inquiries into medical conditions "only when they are job-related and consistent with business necessity." wrote Huggett in an article for Society for Human Resource Management. "Because there are not international travel restrictions and because the risk of transmission is very low, requiring a medical examination for returning travelers would likely not be considered a necessity," he added.

At this point in the crisis, though, Katharine Parker, an attorney at Proskauer law firm, said it's reasonable for an employer to ask employees to report if they were on the Frontier flight or have otherwise been contacted by authorities about possible exposure and to ask them to work from home for 21 days as a safety precaution. Or ask them to monitor themselves closely and stay home if they have a fever or other symptoms, absent clearer guidance from the CDC.

The CDC has provided workplace safety guidelines for Ebola and the U.S. Equal Employment Opportunity Commission has released guidance on pandemic preparedness in the workplace. Nonetheless, common sense should prevail.

"Employers should not act based on fear," Parker said. "Provide employees with information about Ebola ... and put in place a plan in the event an employee reports being exposed to Ebola."

That is probably the most important step companies can take now, said Dave Galt, the managing editor for safety issues at the Business and Legal Resources publishing group: putting a plan in place now and communicating it—before anything happens.

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