This post was written by Thomas Ince and Laura H. Juillet.
As more terrible news of the on-going Ebola epidemic continues to reach us each day, and with the disease showing no sign of slowing, employers around the world are asking what steps they should be taking regarding their employees, both now and in the future, if the disease spreads closer to home.
We take a look below at some of the questions and risks which are concerning employers. You can find out more from our legal experts by signing up for our teleseminar on Wednesday 22 October 2014 (see below for further details).
1. Our sales team regularly travel to West Africa – should we stop these trips?
Depending on the applicable legal system, employers have a general duty of care towards their employees, as well as specific health and safety obligations. These apply equally on foreign business trips as well as in the office. Before considering whether to cancel or go ahead with a specific business trip, make sure you monitor government and insurance guidance carefully, and remember that advice can change very quickly. Failure to follow such advice could put your business at risk of negligence or health- and safety-related claims should an employee become infected on such a trip, and it may invalidate your insurance policies.
If a business trip goes ahead, continue to monitor updates to travel advice, and ensure these are communicated to the individuals who are travelling. Ensure that employees are aware of guidance surrounding avoidance of the disease (hygiene measures, for example). Make sure effective systems are in place should they need assistance when abroad (for example, regarding evacuation or seeking medical assistance if unwell). Check with your insurers that the individual will be covered on the trip. You need to always bear in mind your duty of care to your employees, and carefully consider beforehand any situation which might put them at risk.
2. What can we do if employees refuse to go on such a business trip?
Depending on the applicable legal system, this may be contingent on the employee’s job description and employment contract (whether this is in writing or not). If their contract requires them to make the trip, then refusal could amount to a disciplinary offence. You will need to handle this fairly and reasonably, as you would any other disciplinary matter, making sure you take into account all the circumstances (including, of course, the reason why the individual is refusing – the risk of contracting Ebola and whether this is reasonable in light of government and other guidelines). What constitutes a fair disciplinary sanction will vary in each case, but sanctions against an employee who is refusing to go to one of the three primary affected countries (currently Guinea, Sierra Leone and Liberia) are at the greatest risk of being found to be unreasonable.
3. We’re worried about the risk of people contracting Ebola within the workplace or spreading the virus - can we make our employees stay at home?
Depending on the applicable legal system, you will need to carefully check your internal policies and employment contracts – is there anything which permits you to put employees on enforced leave, or allows you to require someone to work from home? If so, then make sure you operate within the scope of such terms, and act reasonably at all times.
Otherwise, requiring any employee to stay at home instead of coming to work may, depending upon the reasonableness of the decision and current guidelines at the time, amount to a breach of express contractual terms and/or a breach of the implied term of mutual trust and confidence, and may lead to employee claims (such as claims in the UK for breach of contract and/or constructive unfair dismissal). Whether such risks are worth taking may depend on weighing up the risks of such claims, along with the risks in relation to your general duty of care to employees, plus any specific health and safety requirements (such as taking steps to ensure that working practices do not pose undue risks to employees).
If you choose to make an employee stay at home, there are certain ways to minimise the risk of potential claims. Consider, for example, the length of the enforced leave: longer periods will no doubt be more open to challenge, but you will have to take into account the disease’s incubation period (two to 21 days). Consider also the scope of any ban on coming to the office – blanket bans are unlikely to be reasonable. If you are requiring employees to stay at home, make sure they are able to work (unless they are ill), and be prepared to answer challenges from employees who state that they are prejudiced by being required to work from home (for example, those who need to meet clients to earn commission). To avoid claims of breach of contract, unlawful deductions from wages and constructive dismissal, you will need to continue paying employees. Finally, make sure you are consistent and aware of possible accusations of discrimination in the way you implement enforced leave.
4. I’m concerned that some of our employees will refuse to come to work because of the perceived Ebola risk – how can we deal with them?
Such individuals will be in breach of contract and (just as for those employees who refuse to attend a business trip) disciplinary procedures and sanctions may be appropriate. Take all circumstances and reasons into account when carrying out any disciplinary procedures, and act reasonably throughout. If after reasonable investigation you are sure that an employee’s refusal is unreasonable, then disciplinary action may be appropriate.
5. What do we need to be thinking about if there is an epidemic in our home country – do we need a specific plan?
It is advisable for all businesses to have plans in place for emergency situations, such as an Ebola (or other disease) epidemic. Financial services businesses that are regulated will need to consider any specific obligations they are under regarding ensuring business continuity. While many businesses will already have such plans, regularly reviewing and testing them is worthwhile. While the risk of Ebola spreading globally is currently said to be low, now is nevertheless a good time to ensure that effective disaster recovery plans are in place.
6. What should we be saying to employees, both now and if there is an outbreak at home?
Internal communications are key, and will help ensure you meet your health and safety obligations towards your employees. Make sure that effective communications systems are in place to help you monitor any risk – for example, asking employees to let you know if they are travelling to affected countries. Make sure that employees know who to contact when unable to attend work (especially important if many people are off sick). Finally, ensure you have effective communication of the actual risk of the disease (regularly communicating government guidance to your employees, for example). Potential panic caused by a (perhaps mistaken) risk of infection can in itself be hugely disruptive to an employer’s business, and effective communication with employees can help reduce this.
If you want to find out more on this topic from our international labour and employment experts, you can sign up for our teleseminar on Wednesday 22 October 2104 at 5 p.m. GMT / 12 p.m. EST / 11 a.m. CST / 9 a.m. PST. Partners Thomas Ince and Michael Jones will be on hand to guide you through some of the legal issues faced in light of this outbreak, and to provide some practical advice on what steps you should be taking now to minimise any risk to your business.