Professor Van Tassel highlights constitutional concerns with Ohio’s Public Health Laws and Ebola in Crain’s Cleveland Business article

Ebola concerns are causing companies to seek legal advice

By JEREMY NOBILE

October 26, 2014 4:30 AM

Americans are terrified of the Ebola virus.

And while the country has yet to see any true outbreak, fear of the disease has skyrocketed since the first confirmed reports of the virus in North America. Citizens now rank Ebola among the biggest problems facing the United States, ahead of poverty and terrorism, according to a recent Gallup poll. In Ohio, there have been no confirmed Ebola cases, a couple quarantines, and about 160 reports of an individual coming in contact with an infected person, according to data from the Ohio Emergency Management Agency.

But Ebola concerns are raising a litany of legal questions as well, from how companies should treat employees possibly exposed to the virus or an infected person to whether quarantines infringe on an individual's own civil liberties.

Victor Geraci, a labor and employment attorney at Fisher & Phillips, said many employers are looking for help “digesting” laws and information already out there to evaluate their liability, particularly those in health care fields or where international travel is a part of the job.

“There is confusion, and because there is a group of people who would normally look to law firms on workplace safety issues or protection of employee safety, they're doing so now,” Geraci said, adding that he's quick to remind clients “this is not a crisis at the moment.”

“It's not an outbreak, it's a scare,” said Joe Gross, a partner at Benesch specializing in labor and employment law. “And because it's a scare, people are reacting.”

Gross said he's fielding questions from supervisors and employers across numerous fields who are seeking similar counsel. Many worries center on labor laws, he said, as employers aim to protect their own companies from the potentially infected by encouraging people to stay home, even if they were just briefly in the same room as an infected person.

But a thin line separates proper procedure and potential workplace discrimination.

Out of date

Katharine Van Tassel, director of the Public Health Law and Science Center and Health Law Program at the University of Akron, says part of the issue stems from America's antiquated health laws, written in 1953, that don't outline protocols for dealing with a potential pandemic like Ebola. Those laws create the power to impose quarantines.

The lack of clarity creates unknowns, which begets fear. Van Tassel calls it “emotional epidemiology.”

How to treat an employee who may have only been near an infected person is a significant gray area, Van Tassel said. If an employee with no diagnosis of Ebola and questionable symptoms was forced to stay home by the government or their boss, have they been unfairly labeled as disabled? Would such actions hold up if challenged in court?

If that employee is not being paid, Van Tassel thinks not.

In contrast, the law provides for other similar situations where a person could miss work, like if someone were called upon for jury duty, or even to serve in the National Guard. In both cases, the government is asking a person to miss work to benefit the greater good, Van Tassel said, but the individual is protected in those cases from losing pay or otherwise being retaliated against. She argues the same protections need to be created in public health law not only for potentially ill Ebola victims, but to address future issues that could stem from the appearance of an infectious disease on American soil.

Similar fears have arisen before with the threats of severe acute respiratory syndrome (SARS), Avian influenza (bird flu), even decades ago with the spread of AIDS in the 1980s. All are diseases that once belonged solely to animals and found their way to humans, Van Tassel notes. And similar issues are bound to happen again.

“We need a process in place that says you don't lose your personal rights because you're in quarantine,” Van Tassel said. “It just boggles my mind that if we ask these people to sacrifice for the community ... that we're not handing them a brochure saying, "These are your rights.''

Balancing act

Gross said one employer was asking how to treat an employee who lived with someone who had contact with a person who “may” have had Ebola-related symptoms. The person was seeking advice on how to be fair not only to the individual, but to other employees possibly fearing exposure, regardless of the likelihood.

Gross said he encourages employers to consider drafting their own policies for dealing with the potential effects of Ebola and the complications arising from it to establish protocols that can be applied equally. If a person is being asked to stay home for any reason against their will, Gross suggests drafting an agreement allowing the person to continue earning pay to avoid any possible legal ramifications.

“Some employers may want to be in front of the issue, many others would not,” Gross said.

“But if they deal with it once, they should deal with it in a policy sense so they treat everyone the same.”

Meanwhile, Van Tassel said the federal government could take some similar advice.

“We want to have a plan in place so that people trust the government and choose to cooperate,” Van Tassel said.

“If people do not trust the government, they may not come forward and report that they have been exposed to an infected person, and then they could spread the virus further,” she added. 

“It is imperative that lawyers, healthcare providers and public health officials come together to update Ohio law to properly balance the protection of public health with the constitutional rights of its citizens. ”