Returning from a tri
p to West Africa with some college buddies, Ben X. Posed, a waiter at Chotchkie’s, showed up for work with a fever, muscle aches, a strong headache, and stomach pains. Begging his boss Dee Manding for the rest of the day off, Ben complained of his aches and pains and told of his overnight stay where one of the villagers recently died from Ebola. Dee Manding refused any time off explaining he was short-staffed. The next day Ben was hospitalized with a confirmed case of Ebola. Are Dee Manding and Chotchkie’s liable if other employees, or patrons, contract Ebola?
Yes. If Dee and Chotchkie know or suspect that Ben has Ebola or another deadly, communicable disease, Dee owes a duty to protect his other employees and possibly his customers from exposure.
Employer’s Duty to Protect? An employer must use ordinary care to provide a reasonably safe workplace. For example, a hospital owes a duty to insure that its health care workers know they are treating a patient with HIV positive once the hospital learns that information. Even if the disease is rare and it is unlikely that someone would contract it, an employer still owes a duty to warn its employees. Recently a railroad unsuccessfully argued it owed no duty to warn its employees that mosquitoes can carry West Nile virus, losing its argument that was common knowledge. According to the Centers for Disease Control, Ebola is a “rare” disease and outbreaks have occurred “sporadically” since the disease was discovered in 1976.
Must the Employer Protect the Public? Because Chotchkie’s was aware of Ben’s recent travels and showed symptoms associated with Ebola, but then told Ben he had to work, it is likely that the restaurant owes a duty to protect its patrons from exposure to Ben. Chotchkie’s owes a duty to prevent foreseeable injury because it knew of Ben’s condition and exercised control over Ben – refused to allow him to go home. Chotchkie’s also owes a duty to customers and visitors to keep its premises, safe from any unreasonable “condition” that it knows or should have known. That includes surfaces that Ben’s bodily fluids might have on them, such as if Ben wiped sweat from his brow and then touched a door handle. Chotchkie’s needs to disinfect the door handle or warn its guests not to touch it.
Tilting the Scales in Your Favor
Sick employees present a double danger: if highly contagious, perhaps liability for infecting other employees and guests; and, even if not highly contagious, presenting the risk of lost company productivity caused by other sick employees in the workplace. Certainly if an employee complains of Ebola-like symptoms or other similarly rare and deadly diseases, send them home to seek medical treatment. Arguably, even employees who are coming to work to protect their PTO should be instructed to leave immediately and seek medical treatment. In the worst of cases, an employer should consider closing the office, or the parts the employee(s) accessed that day, and have them cleaned.