*** Last Updated: February 20, 2020 ***
News that cases of the newly-identified 2019 Novel Coronavirus (also referred to as COVID-19) continue to spread has prompted employers to think about employee safety and ways to address disease prevention in the workplace. Although, according to the Occupational Safety and Health Administration (OSHA), “most American workers are not at significant risk of infection” at this time, the situation is evolving, and it is never too early for employers to consider how they can address employee concerns, help prevent an outbreak, or address one if it occurs. Employers should also be aware of legal pitfalls that they may encounter when attempting to protect their employees from the virus.
The following addresses some of the key questions employers may have regarding the Coronavirus threat. Employers should also note that the CDC has released guidance specifically addressed to businesses outlining recommendations and best practices on protecting the workplace. You can read more about this latest guidance on our recent blog post.
What is the Coronavirus and How Is It Transmitted?
At this point, relatively little is still known about the 2019 Novel Coronavirus, more commonly known as the “Coronavirus.” According to the CDC, the initial reports of the illness originated in Wuhan, China, where people likely contracted the virus from animals at a seafood and animal market. Experts now believe that the virus is spreading from human-to-human when an infected person coughs or sneezes, similar to the spread of a cold or flu. However, it is still too early to know how easily the virus is transmitted between people. On January 30, 2020, the first case of person-to-person transmission in the United States (between a woman previously diagnosed with Coronavirus after returning from Wuhan and her husband) was reported. Presently, the number of confirmed cases in the United States is reported by the CDC to be at 15, with cases remaining under investigation in a number of states.
What Are the Primary Symptoms of the Coronavirus?
In the confirmed cases of Coronavirus thus far, affected individuals have reported mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In severe cases, the virus has led to pneumonia and kidney failure and has resulted in an increasing number of deaths (the majority of which have occurred in Wuhan; however, the Philippines reported the first death outside of China on February 1, 2020, and subsequent deaths have since been reported in Hong Kong, Taiwan, South Korea, Japan, France, and Iran). The CDC believes at this time that symptoms may appear within two to fourteen days after exposure. However, some infected individuals have shown little to no symptoms.
How Can Spread of the Coronavirus Be Prevented?
Because there is presently no Coronavirus vaccine available, the CDC is recommending standard precautions to avoid the spread of respiratory viruses, such as washing hands with soap and water for at least 20 seconds, or, if soap is not available, using hand sanitizer; avoiding close contact with people who are sick; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.
What If My Employees Travel to China For Business?
As of January 27, 2020, the CDC has issued a level 3 health travel notice (the highest threat level) recommending that people avoid all nonessential travel to China.
On January 30, 2020, the World Health Organization (WHO) declared a global health emergency over the spread of Coronavirus. The WHO’s statement indicates that further international exportation of the virus is expected, and that cases may appear in any country.
Following the WHO’s global health emergency declaration, on January 30, the U.S State Department raised its China travel advisory to Level 4: Do Not Travel. The advisory states that “[t]hose currently in China should consider departing using commercial means” and that “[t]he U.S. government has limited ability to provide emergency services to U.S. citizens in Hubei province.”
On January 31, 2020, U.S. Health and Human Services Secretary Alex Azar stated that a public health emergency has been declared in the United States and, effective 5:00pm EST on Sunday, February 2, 2020:
- all U.S. citizens returning to the United States who have been in Hubei province in the two weeks before their return will be subject to up to 14 days of mandatory quarantine; and
- U.S. citizens returning from the rest of mainland China in the two weeks prior will face a health screening at a select number of ports of entry and will also be subject to up to 14 days of “monitored self-quarantine” to ensure they pose no health risk.
In addition, President Trump has signed a proclamation suspending the entry into the U.S. of foreign nationals who have traveled in China in the last two weeks. Foreign nationals who are the immediate family of U.S. citizens or permanent residents presently are exempt.
With all of these rapidly changing developments in mind, employers whose employees travel to and from China should consider the following:
- Consider whether to limit travel to affected areas. The General Duty Clause of the Occupational Safety and Health Act (also referred to as OSHA) requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” Although OSHA has not promulgated specific standards covering the Coronavirus, requiring employees to engage in business travel to China (or any other areas in which the risk of contagion is heightened) could create risk under the General Duty Clause, particularly in light of the CDC and State Department travel warnings and the actions being taken by the U.S. government to impose quarantine measures on returning travelers. For that reason, employers whose business may involve travel to China (or other areas that become subject to travel restrictions or otherwise experience an increase in the spread of the virus) should strongly consider other available options for employees for the duration of the threat, such as videoconferencing.
By the same token, employers should also be prepared to respond to employees who may express concerns about traveling to affected areas due to the virus. While an employer generally has broad discretion to decide the duties and requirements of a job and to discipline employees who fail to fulfill those requirements, as a practical matter employers may wish to consider offering employees reasonable alternatives to such travel.
Finally, while employers may implement restrictions on work-related travel to affected areas, employers should tread more carefully when attempting to police personal, non-work-related travel. That said, recent decisions in the Seventh, Eighth, and Eleventh Circuits have held that the disability discrimination protections of the ADA do not apply where an employer takes an employment action based on the potential for an employee to become ill and disabled in the future. Specifically, the Eleventh Circuit found no liability under the ADA where an employer terminated an employee who requested time off to travel to Ghana to visit family because of the perceived risk that the employee would contract the Ebola virus, due to recent outbreaks of the disease in neighboring countries. While courts have tended to take this view, it is worth noting that the EEOC has argued on at least one occasion that an employer acting on a potential future health condition may be viewed as “regarding” an employee as disabled as long as the condition otherwise qualifies as a disability under the law. For this reason, employers should consider the risks (as well as the practicalities) relating to imposing a ban on personal, non-work-related travel to affected areas.
- Provide relevant safety information to employees. Employers whose employees travel to affected areas should provide information to their employees about how the Coronavirus is transmitted, its symptoms, and how to avoid exposure – utilizing trusted and reputable sources such as the CDC. Employers would be well advised to also provide these employees with resources and contact information for local health departments and the CDC.
- Understand that employee travel may be interrupted. The Chinese government has closed transit within and out of Wuhan and certain other areas of the Hubei Province. Hong Kong has also imposed certain restrictions on travel to and from the Chinese mainland and is imposing 14-day quarantines on individuals arriving from China. In addition, Russia has closed its Far Eastern border with China, as well as limited railway service with China. In the U.S., multiple major air carriers are canceling flights to and from parts of China, and the United States is re-routing passengers from Wuhan, China to certain designated airports (including Chicago O’Hare, Atlanta, New York JFK, Los Angeles, and San Francisco) for enhanced screening, which may take more time than usual screenings for common viruses. And as noted above, mandatory quarantine rules are being imposed for U.S. citizens who have traveled to Hubei province.
What Should I Do if an Employee Has Recently Traveled to China or Otherwise May Have Been Exposed to the Coronavirus?
Employers should remember that the Americans with Disabilities Act (ADA) places certain restrictions on the kinds of inquiries that can be made into an employee’s medical status. Specifically, the ADA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
According to Pandemic Preparedness Guidance published in 2009 by the Equal Employment Opportunity Commission (EEOC) in the midst of the H1N1 influenza outbreak, whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers should look to the most up-to-date assessments being made by the CDC or other public health authorities, as they relate to the employer’s location, to determine the severity level of an illness and, in turn, whether an employee who potentially has been exposed to the illness may constitute a “direct threat.” Employers should not rely on speculation or unofficial information when making determinations about whether there is a direct threat in a particular circumstance. At the moment, the CDC is not classifying the Coronavirus as a pandemic, but the situation continues to rapidly evolve and we will provide updates should additional guidance be released by the CDC or other public health officials on this important issue.
All this being said, employers should keep in mind the following when it comes to employees who have traveled to affected areas:
- Employers need not wait until an employee returning from travel develops symptoms to inquire about exposure to the Coronavirus. Inquiring about whether an employee has traveled to an affected area or about possible exposure to a contagious illness during such travel would not constitute a disability-related inquiry. However, as discussed below, the extent to which an employer may act on the information received will depend on the most recent information available from the CDC and other public health officials. Further, employers inquiring into whether employees have traveled to affected areas should do so of all employees known or believed to have recently traveled, rather than directing such inquiries only to employees of certain races, ethnicities, or national origins. Finally, employers should be mindful to keep confidential all medical-related information received from an employee, in accordance with the ADA.
- Employers may require employees who have traveled to China to stay home. As discussed above, the United States is imposing a 14-day mandatory quarantine on individuals who have traveled to Hubei province, and 14-days of “monitored self-quarantine” for individuals returning from other parts of mainland China. In light of this development, an employer may require an employee who is returning from travel to these areas to stay home for the suggested period of time.
- Under certain circumstances, employers may require employees who have traveled to other affected areas to stay home. If an employee has traveled to another affected area and has reported either possible contact with an affected person and/or Coronavirus symptoms, an employer can require the employee to stay home until medically cleared to return to work. However, an employer who is considering a blanket requirement that employees who have travelled to other affected areas remain home – even absent potential exposure to the virus – should consult with counsel. Employers should continue to monitor the CDC website and other news sources for further developments.
What Other Things Should Employers Be Thinking About When it Comes to the Coronavirus?
- Employers may – and should – send employees home if they exhibit potential symptoms of contagious illnesses at work. The EEOC has said that sending an employee home who displays symptoms of contagious illness would not run afoul of the ADA’s restrictions on disability-related actions because: (i) if the illness ultimately turns out to be relatively mild or “run of the mill” (such as seasonal influenza), then it would not have constituted a covered disability in the first place; and (ii) if the illness does turn out to be severe (such that it may constitute a disability under the law), then the actions would be warranted under a direct threat analysis. In either case, an employer can send an employee home who is displaying symptoms of contagious illness, even if this is against the employee’s wishes. Employers should also consider making clear in their policies that employees who have symptoms of a potential contagious illness must not report to work while they are sick.
- Determine whether the FMLA or other leave laws may apply. An employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take unpaid leave under the federal Family and Medical Leave Act (FMLA) or state-law analogues. Employees may also be eligible for leave as a reasonable accommodation under the ADA or related state or local law, if the underlying condition constitutes a qualifying disability. However, employees generally are not entitled to take FMLA or reasonable accommodation leave to stay at home to avoid getting sick (though an exception may exist where a preexisting medical condition is likely to be worsened by exposure to a contagious disease). Furthermore, employees in certain jurisdictions may be entitled to paid sick leave if needed to care for themselves or a sick family member in the event of an illness, or if their workplace or a child’s school or day care is closed due to a public health emergency.
- Consider whether OSHA requirements may apply. While, as noted above, OSHA has not promulgated specific standards covering the Coronavirus, it has issued a notice indicating that employers should be aware of the following general standards to which employers may be subject under OSHA:
- General Duty Clause: As discussed above, the OSHA General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” To that end, there are some readily achievable steps that employers can take to prevent the spread of the Coronavirus (and other contagious illnesses) within the workplace, such as: providing hand sanitizer to employees, ensuring that surfaces and eating areas are disinfected regularly, and encouraging employees who are sick to stay home. Employers also may start to consider certain policy changes they may wish to implement in response to the Coronavirus should the situation become more severe in the U.S., such as allowing employees to work from home.
- Personal Protective Equipment: OSHA requires that protective equipment, clothing, and barriers be provided whenever it is necessary to prevent employees from being exposed to environmental hazards. Employers are required to assess the workplace, determine if hazards are present, and if so, select and have employees use protective equipment. Employers whose employees may encounter individuals infected with the Coronavirus, such as those in the healthcare and travel industries, should begin to consider what protective equipment would be necessary to protect its workforce should the virus begin to spread within the United States.
- Recordkeeping and Reporting Requirements: OSHA requires that certain employers keep a record of certain work-related illness and injuries (often referred to as an OSHA Form 300 log). While there is a regulatory exemption for recording instances of the standard cold and flu, OSHA has deemed the 2019 Novel Coronavirus a recordable illness when a worker is infected on the job. In addition, certain employers may be subject to reporting requirements under state and local law if they have a reasonable belief that a significant disease is present in the workplace.
- Employers in Higher-Risk Industries: While, again, OSHA has yet to issue any standards or controls specific to Coronavirus, employers operating in industries where employees may be at a potential increased risk of exposure should prepare for the possibility that heightened requirements may be put in place. In the past, OSHA has issued such guidance for employers in industries such as healthcare, airlines, and mortuary services, such as during the MERS outbreak in 2015.
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Employers, particularly those whose employees may be likely to encounter the Coronavirus, should consult with counsel to determine whether any of the above precautions may be necessary.
Information about the Coronavirus is constantly developing, so employers also should continue to refer to the CDC, WHO, and OSHA websites for the latest on appropriate precautions, including changes to travel notices. Of course, we will continue to monitor this situation and report on any updates as they develop.