By Bradford T. Hammock
The spread of Ebola hemorrhagic fever (EHF) and the incidence of Ebola cases in the United States have raised issues for employers and employees on appropriate workplace responses. The mining community has not escaped these issues, as the public health community at large has mobilized to prevent the spread of the virus.
The Ebola outbreak, however, has highlighted a broader issue for mining employers related to emergency preparedness and business continuity considerations. Mining employers should review their response to the Ebola outbreak and adjust their approach to emergency response and business continuity based on lessons learned.
Ebola Hemorrhagic Fever
Over the last weeks, the world public health community has been battling the spread of EHF. EHF is caused by infection with an Ebola virus, and is typically associated with fever, muscle pain, headache and sore throat. Other symptoms, including nausea, vomiting, diarrhea and impaired organ function, may appear as the illness progresses. Symptoms of EHF arise within two days and 21 days after exposure, but eight days to 10 days is the average.
The Centers for Disease Control and Prevention (CDC) has categorized the Ebola virus as a Category A select agent. This means that it poses a risk to national security because it can be easily disseminated or transmitted from person to person, can result in high mortality rates and has the potential for major public health impact, may cause public panic and social disruption, and can require special action for public health preparedness.
The CDC has been and continues to monitor the spread of the virus. In the U.S., cases of transmission of the virus have occurred in the health care setting. The Occupational Safety and Health Administration (OSHA) has stated the Ebola virus and EHF do not pose a threat to most U.S. workers.
Workplace Safety and Health Considerations
The first consideration for employers, including mining employers, relates to risks associated with employee exposure to the Ebola virus and measures to protect employees from such exposure. Workers performing tasks involving close contact with symptomatic individuals with EHF or in environments contaminated or reasonably anticipated to be contaminated with infectious body fluids are at risk of exposure.
OSHA has identified workers in health care, laboratories, the airline industry, other travel service, mortuary and death care, border protection, and emergency responders as having the greatest risk of exposure. Employees in the mining industry are at low risk of exposure.
Even so, many employers have been facing the prospect of employees traveling to areas particularly affected by the spread of Ebola. This issue exists for employers regardless of industry. For employees that travel to an area affected by the outbreak, the CDC provides the following recommendations:
• Wash hands frequently or use an alcohol-based hand sanitizer.
• Avoid contact with blood and body fluids of any person, particularly someone who is sick.
• Do not handle items that may have come in contact with an infected person’s blood or body fluids.
• Do not touch the body of someone who has died from Ebola.
• Do not touch bats and nonhuman primates or their blood and fluids and do not touch or eat raw meat prepared from these animals.
• Seek medical care immediately if you develop fever (temperature of 101.5 F/38.6 C) and any of the other following symptoms: headache, muscle pain, diarrhea, vomiting, stomach pain or unexplained bruising or bleeding.
Employment and Labor Law Considerations
In addition to workplace safety and health issues, employers have had to consider other employment and labor law issues that an Ebola event could involve. For example, coworkers’ concerns for their own safety about being near an employee who has traveled to or through countries of concern, as identified by the CDC.
Most employment laws were not written with the outbreak of a deadly virus in mind. Perhaps because of this, in dealing with these issues, employers have found there is no effective “risk-free” approach. Below are some basic employment law considerations:
The Americans with Disabilities Act (ADA), among other things, prohibits employers from: (1) discriminating against individuals who have a disability, including those who are “regarded as” having a disability; and (2) making disability-related inquiries of employees or requiring employees to undergo medical examinations unless it is “job-related and consistent with business necessity.” The ADA also prohibits employers from disclosing confidential medical information, including the identity of an employee with a communicable disease. The law does not require an employer to employ an individual who presents a “direct threat” of harm.
The Genetic Information Nondiscrimination Act (GINA) prohibits an employer from discriminating against individuals based on genetic information and strictly limits circumstances where employers may request an employee’s genetic information (generally defined as information about the manifestation of disease or disorder in family members of the individual). GINA does allow disclosure of genetic information “to a public health agency, if information about the manifestation of a disease or disorder concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.”
Section 7 of the National Labor Relations Act (NLRA) gives non-supervisory, non-managerial employees the right to engage in “protected concerted activity” for their own mutual aid or protection. Activity is “protected” if it is neither violent nor sufficiently opprobrious. Activity is “concerted” if it is taken by or on behalf of more than one employee and concerns the employees’ terms or conditions of employment, including safety and health.
Federal, state and local leave laws such as the Family and Medical Leave Act, state family and medical leave laws, state and local paid sick leave laws may allow employees to take time off for diagnosis and treatment of either the employee’s medical condition or that of a family member.
State medical privacy laws generally prohibit the disclosure of personal health information. Some require notification to an employee if there has been an unauthorized disclosure.
Common law defamation or invasion of privacy claims may arise from identifying someone as having the virus when he or she does not.
Emergency Response and Business Continuity
While the mining industry is not considered high risk for exposure to Ebola, mining employers are encouraged to review their own emergency response and business continuity plans in light of the Ebola outbreak and the considerations above. At this time, Ebola may not be having a significant impact on mining operations. However, the lessons learned here can inform preparations for future events.
Successful business continuity objectives planning should include:
- Creating a business continuity team.
- Evaluating the level of risk, probability for the event, and potential hazards and impacts in the workplace.
- Defining the organization’s essential functions and ensuring that the organization can perform its essential functions under all conditions.
- Planning and procedures developed to reduce the loss of life and minimizing property damage and loss.
- Executing a successful order of succession with accompanying authorities in the event a disruption renders the leadership unable, unavailable, or incapable of assuming and performing their duties and responsibilities.
- Ensuring there are facilities from where the organization can perform essential functions.
- Protecting personnel, facilities, equipment, records, and other assets critical to the performance of essential functions in the event of a business disruption.
For mining operators, the Ebola outbreak is a “leading indicator” for emergency response planning. Organizations should review their business continuity plans and ensure they are fully prepared if the Ebola outbreak should continue or spread or another emergency occur that impacts operations.
Bradford T. Hammock is a shareholder in the Washington, D.C. region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is Leader of the firm’s Workplace Safety and Health practice group.