Employer's Next Problem - Ebola?

October 2014
By: Walter J. Liszka, Esq.

With the recent problems that have arisen because of the Ebola virus's extension to the United States and Spain (the death of Thomas Eric Duncan in Dallas and Madrid hospital issues), all employers may face a serious crisis in the future. With the first cases of Ebola transmitted outside the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria, where a month-long outbreak has killed more than 3,400 people, questions are arising as to how well-prepared other countries and employers are with the fear and potential disastrous consequences of an Ebola outbreak. According to the World Health Organization (WHO), Ebola is a virus characterized by a hemorrhagic fever (a fever accompanied by an escape of blood from a blood vessel) and is frequently fatal. As stated above, in the last month, over 3,400 people have lost their lives and the average fatality rate for Ebola exceed 50% of those affected. While the current outbreak is primarily affecting the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria, Ebola cases have been reported in the United States and in Spain.

While Ebola is considered as less contagious than some other diseases because it is not transmitted through casual contact or through the air - the Ebola virus transmittal generally occurs through direct contact of human-to-human transmission involving the infected person's blood, secretions, organs, or other bodily fluids. It is also believed that it can be transmitted through contact with surfaces and materials that have been contaminated by the infected person's blood or other bodily fluids. It is, at least at this time, believed that the Ebola virus has an incubation period of approximately one (1) month and that an infected person will not show signs of Ebola infection until after fourteen (14) days of exposure. The initial symptoms of Ebola can be a fever, fatigue, muscle pain, headache, and sore throat, and as the disease progresses, additional symptoms include vomiting, diarrhea, rashes, potentially impaired kidney and liver function, and internal/external bleeding.

While employers have a general duty to protect employees from recognized hazards in the workplace, the Occupational Safety and Health Act (OSHA) requires employers to provide a place of employment which is "free from recognized hazards that are causing or are likely to cause death or serious harm." (29 U.S.C. § 654). It is probable that, at this time, Ebola would not be a consideration or concern for employers in protecting their employees. Unfortunately, if the number of reported cases rose and an employer's workforce may be at risk due to exposure to an employee who is diagnosed with Ebola, employers may want to consider some of the following steps:

• Educate employees about how Ebola is spread and best practices to avoid transmission (this should be done by qualified medical personnel).
  
• Encourage employees to self-report any potential symptoms and to immediately put those employees on leave of absence if the symptoms develop.
  
• Establish a plan for employee notification and continuing work functions if Ebola is discovered. This may involve other work locations.
  
• Contact qualified medical personnel and establish a procedure for transporting employees to the hospital and disposing of and cleaning any potentially infected materials.
  
• Establish a plan that if an infected individual is identified in the workplace, for identifying those employees with whom the individual has come in contact, so that they can be monitored for symptoms. Also develop a plan to "sanitize/clean" the work location.

Clearly, Ebola would qualify as a serious health condition under the Family Medical Leave Act (FMLA) and any employee who may have come in contact with an infected individual would be eligible for FMLA Leave. As a practical solution, it may be in the employer's best interest to put on leave any individuals who have been in contact with an infected person to alleviate fear, morale problems, and forestall the expanse of the disease. While at this time, Ebola may not be a major concern for most employers in the United States, the old adage of an "ounce of prevention is worth a pound of cure" could (would) certainly apply.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Family Medical Leave Expansion

June 2012
By: Walter J. Liszka

As most employers know, the Department of Labor Family Medical Leave Act (FMLA) forms which were initially issued in the early 1990s expired as of December 31, 2011. The Department of Labor (DOL) has been working with the Office of Management and Budget to extend the life of these forms and received approval that their model forms will be extended through February 28, 2015. Unfortunately, the DOL has made very few changes to those forms to incorporate any required modifications with regard to the expansion of Military Family Leave and the provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA).

It should be noted that as of 2010, many amendments were passed with regard to Military Family Leave and related exigency leave. The proposed regulations allow employees to take up to 12 weeks of FMLA leave for a "qualifying exigency" due to a family member's call to active duty in a foreign country. The qualifying ranges of the exigency leave normally encompass a wide range of activities dealing with that service member's deployment such as attending to legal, financial, family, child care, school, and other related matters. The FMLA has also been revised to allow employees up to 26 weeks of job protected leave in a single "12 month period" to care for a service member with a "serious injury or illness related to his/her military service." Note that that prior to the National Defense Authorization Act of 2010, exigency leave was only available to family members of Reserve and National Guard units and not regular service members. However, with the passage of the National Defense Authorization Act of 2010 and the proposed regulations, FMLA leave is now available to family members of regular service members, as well as Reserve and Guard units. Efforts should be made to modify all FMLA leave documentation to reflect these changes. Further information regarding these issues can be obtained from the Department of Labor website, Fact Sheet 28 and 28A.

As well, the Genetic Information Non-Discrimination Act of 2008 (GINA), prohibits discrimination and harassment based on genetic information and prohibits employers from acquiring genetic information except in very narrow circumstances. Genetic information includes:

• Information about an individual's genetic tests.
• Information about genetic tests of an individual's family.
• Information about the manifestation of a disease or disorder in an individual's family.
• Genetic information dealing with a fetus carried by an individual or by some pregnant woman who is a family member of the individual.

It is strongly suggested that for both FMLA leave documentation dealing with an individual and an individual's family, the following be added to all required FMLA forms:

The Genetic Information Non-Discrimination Act of 2008 prohibits employers and other entities covered by Title 2 of the Act from requesting or requiring genetic information of an individual or family member of that individual except as specifically allowed by the Genetic Information Non-Discrimination Act. To comply with this law, we request that you not provide any genetic information when responding to this request for medical information. Genetic information, as defined by the Genetic Information Non-Discrimination Act of 2008, includes an individual's family medical history; the result of an individual's or family member's genetic testing; the fact that an individual or an individual's family member sought or received genetic services; any genetic information regarding a fetus carried by that individual or an individual's family member or an embryo lawfully held by an individual or family member receiving reproductive services.

The use of the suggested Department of Labor Forms was based on alleviating any possible "technical violations" that might have occurred through the use of employer-created forms. The author suggests that the genetic information referred above be merely added to the Department of Labor Forms dealing with the Certification of Health Care Provider by attaching as an amendment.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Illinois Pregnancy Protections Expanded

September 2014
By: Walter J. Liszka, Esq.

On August 26, 2014, Illinois Governor Pat Quinn signed into law House Bill 8 (HB8) that amends the Illinois Human Rights Act (IHRA) by placing "new obligations on employers" with regard to their pregnant employees. While the law will not take effect until January 1, 2015, employers should be cognizant of the new obligations imposed upon them.

As most readers will remember, the IHRA had long standing prohibitions on employment discrimination "on the basis of pregnancy" (775 ILCS 5/2-102(H) and (I)). It is also well known that pregnancy by itself does not qualify as a disability under the Americans with Disabilities Act (ADA) and, therefore, an employer does not need to provide any reasonable accommodation to a woman based solely on her pregnancy. These facts raise questions in the mind of the author as to why Governor Quinn and the Illinois State Legislature are in such a rush to provide these modifications. It is even more curious since the Supreme Court will hear in the fall term the case of Young v. United Parcel Service, Inc., which will provide needed guidance on pregnancy and disability issues.
Regardless of the above facts, the IHRA has now been amended to provide not only the pregnancy protections previously under the Act, but also an entire new section (775 ILCS 5/2-102(J)) that requires what are called "reasonable accommodations."

The "reasonable accommodations" will have to be provided to women on account of pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Essentially, employers will have to treat pregnancy and pregnancy-related conditions like they treat any other disability under the confines of the ADA. These reasonable accommodations must be made to a pregnant applicant or employee, whether that employee is full-time, part-time, or probationary. The term "reasonable accommodations" means any reasonable modifications or adjustments to the job application process or to the work environment or to the manner or circumstances under which the position is performed. The Bill also provides a "non-exclusive list of reasonable accommodations" which includes:

• More frequent or longer rest breaks. 
• Private non-bathroom space for breastfeeding and related activities such as pumping milk. Reasonable and provided seating. 
• Assistance with manual labor.  
• Modification or adjustment of equipment. 
• Temporary transfer to less strenuous or hazardous position. 
• Reassignment to a vacant position. 
• Job restructuring.  
• Light duty or part-time modified work schedule. 
• Time off to recover from conditions related to childbirth. 
• Leave necessitated by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth. 

If, in fact, leave is afforded as some form of reasonable accommodation, the employee must be guaranteed to be reinstated to her original position or to an equivalent position with pay seniority, retirement, and fringe benefits. It is quite probable that based on the "medical conditions" that this type of leave for pregnancy could extend beyond what is required under the Family Medical Leave Act (FMLA) and the twelve (12) week limitations.

Employers may require medical documentation from the healthcare provider with regard to the need for a reasonable accommodation and employers must engage in the interactive process with the involved employee with regard to providing the proposed accommodations.

Obviously, this law, since it will apply to all employers having one (1) or more employees, will have a major impact on work conditions and day-to-day actions taken in any employment setting. How this law will square with any future Supreme Court decision is anyone's guess, but I am quite certain that the "legal skills" of Quinn, Madigan, and Cullerton are not on the same level as the "Supremes." Regardless, the wise employer will begin the analysis to deal with this legislation because any Supreme Court decision, at its earliest, is some time in the latter part of calendar 2015.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .