What Employers Need to Know About Navigating the Novel COVID-19 Coronavirus Threat

As the number of cases of the 2019 Novel Coronavirus (Coronavirus) continues to rise, many employers are seeking guidance on how to respond to workplace concerns and ensure they are prepared to deal with possible contagion. In this alert, we address some of the issues raised by the recent and ongoing outbreak and share our recommendations for best practices in handling the impact of the Coronavirus in the workplace. 

Background

The Coronavirus is a respiratory illness that first appeared in Wuhan, Hubei Province, China in December 2019. Symptoms associated with the virus range from fever, cough, and shortness of breath to pneumonia, kidney failure, and death. The U.S. Center for Disease Control and Prevention (CDC) reports that the symptoms may appear between two and 14 days after exposure, though some infected individuals may have little or no symptoms. According to the CDC, the Coronavirus is most often spread from person-to-person contact, mainly when an infected person coughs or sneezes.

Since the coronavirus was first identified, it has rapidly spread throughout China and around the world. On January 30, 2020 the World Health Organization (WHO) declared the current outbreak to be a “public health emergency of international concern.” The U.S. government has since suspended the entry of foreign nationals who have been in China within the past 14 days and required U.S. citizens returning from China be quarantined for up to 14 days. As of February 10, 2020, the virus has infected more than 40,000 people, with a confirmed death toll of more than 910 people worldwide. Although most cases are still centralized in Hubei, in the United States, 398 people have been checked for possible infection, of which 12 have tested positive and 68 are still waiting for results.

Disease outbreaks of this proportion and breadth present a unique set of legal issues employers must consider when implementing precautionary measures in the workplace.

Employment and Labor Law Considerations

An Employer’s Obligation To Provide A Safe Workplace

When considering precautions in the workplace, employers must be conscious of their legal duties and responsibilities in this area. As required by the Occupational Safety and Health Administration (OSHA), U.S.-based employers have a duty to provide employees with information, instruction, training, and supervision to ensure the safety and health of employees at work. Furthermore, where the workplace is under the employer’s control, the employer must also maintain the workplace in a manner that is safe and without risks to health. 

Employers can fulfill their legal obligation to provide a safe workplace by taking the following steps to help prevent the spread of the Coronavirus in the workplace:

• Provide employees with information about how the Coronavirus is transmitted, its symptoms, and how to avoid exposure. Employers should direct employees to reputable sources such as the CDC and WHO, which state that those infected by the Coronavirus, who are being evaluated for infection, or who exhibit symptoms of the virus, should remain isolated and at home. 
  
• Reinforce sick leave policies and remind employees to stay home if they are feeling ill or exhibiting symptoms of a contagious illness such as the Coronavirus.
  
• Send employees home if they exhibit potential symptoms of the Coronavirus while at work. 
  
• Inform employees about government travel restrictions and suspend any nonessential business travel to an infected region.
  
• Where possible, consider offering employees reasonable alternatives to international travel, such as working remotely or temporarily opting out of such travel.  
  
• Alert employees already in an infected region to take precautions, such as: avoiding contact with sick people as much as possible; avoiding public transportation; avoiding animals, animal markets, or products that come from animals; and washing their hands often, with soap and water, and for at least 20 seconds.  
  
• Advise employees who are attempting to return to the U.S. from international travel that they may be questioned to determine if they must undergo additional health screenings or, in some cases, quarantine.
  
• Inquire about an employee’s possible exposure to the Coronavirus if an employee has traveled to China in the last 14 days or has been in close contact with someone experiencing flu-like symptoms or who has contracted the virus. Employers making such inquiries should do so of all employees known or believed to have recently traveled to avoid any implications of discrimination.  
  

Limitations on an Employer’s Ability to Respond

While employers may be acting with the intent to protect their employees and the workplace, there are some important legal limitations to consider when responding to or attempting to prevent a threat of contagion.

Compliance with the American with Disabilities Act
The ADA prohibits employers from making certain inquiries into an employee’s medical status and requiring medical examinations, unless the inquiry or exam is a job-related necessity, or the employer has a reasonable belief that the employee is a direct threat to the health or safety of the individual or others and there is no reasonable alternative. Furthermore, the ADA prohibits discrimination against individuals belonging to certain races or nationalities where the virus is most prevalent, or who are disabled or perceived as disabled because they exhibit symptoms of the virus.

To avoid liability under the ADA, employers should follow CDC or other public health organization recommendations and consult with counsel prior to implementing policies and responding to threats of possible contagion. As of now, employers should not isolate, quarantine, or require a medical exam of those individuals who have returned from international travel and do not exhibit symptoms of the Coronavirus. However, employers can require an employee who exhibits symptoms of the virus while at work to go home, and may be justified in asking employees who have recently returned from an affected area to remain home for the extent of the incubation period to ensure there is no infection.

In developing an emergency action plan or policy, employers must ensure it is equally applicable to all employees, regardless of any underlying characteristics, and is consistently implemented. Furthermore, such a plan should conform to any existing policies addressing contagious illnesses, unless otherwise directed by public health officials and counsel.

Considerations Under the National Labor Relations Act
Under Section 7 of the National Labor Relations Act (NLRA), applicable to both non-union and union workplaces, employees have a right to engage in group activities for their mutual benefit or protection in the workplace. Therefore, employers should consider employee requests to wear a protective facemask on a case-by-case basis. Furthermore, Section 7 may also be implicated if some employees refuse to work with an employee who has traveled to an infected region or was exposed to the Coronavirus. 

To avoid claims under Section 7 of the NLRA, employers should maintain an open dialogue with their employees and must ensure their employees feel that they are provided with appropriate protective measures. As the situation continues to evolve, employers should adhere to OSHA, CDC, and WHO guidance to limit legal liability under the NLRA.

Compliance with the Family and Medical Leave Act 
Under the Family and Medical Leave Act (FMLA), an employee who is experiencing a serious illness or requires time to care for a family member with a serious health condition may be entitled to unpaid leave and, in some jurisdictions, paid leave. These employees may also be entitled to reasonable accommodations during such leave if the underlying condition qualifies as a disability under the ADA or related state or local law. Employees who stay at home to avoid getting sick are generally not entitled to FMLA leave or reasonable accommodations, although employers may want to consider a flexible work-from-home policy.

Furthermore, as required by the FMLA, employers must keep all medical records relating to approved leaves of absence confidential. Additionally, state laws and the Health Insurance Portability and Accountability Act (HIPAA) may also be applicable to maintaining confidential records. 

Implications for Employment Contracts
While it is suggested that employers implement a written emergency action plan for policies addressing the Coronavirus, employers must first consult any collective bargaining agreements or other contracts of employment, where applicable. Employment contracts may limit how an employer can implement emergency policies or provide additional obligations regarding the adoption of such policies.

Employers' Best Practices

Although the situation surrounding the Coronavirus is constantly changing as public health organizations learn new information, below is a list of some best practices to ensure that you are well-positioned to address employment issues that may arise.

• Follow the guidelines suggested above to limit risk of exposure.
• Encourage employees to review sick leave and paid time off policies and identify a point persion who can answer any related questions.   
• Review and/or create a written emergency action plan to ensure the company is compliant with OSHA regulations and the ADA and that it includes a protocol for addressing infectious diseases. For example, this plan should cover:  
  • methods for maintaining open lines of communication with employees to ensure they are up to date with the current situation of the virus and any major developments that arise;
  • what illnesses or exposure to illnesses an employee must disclose to the employer and when and how the disclosure should be made;
  • policies and procedures for anyone who feels unwell or exhibits possible symptoms, including: when an ill employee must stay home, when an ill employee will be sent home, when and in what circumstances the employee may return to work, and what benefits or compensation is available; 
  • flexible working and travel arrangements;
  • provision of preventative measures, such as: masks, increased office cleaning services; alcohol-based hand sanitizers; and 
  • guidance for employees traveling to or from affected areas.
    
• Provide any appropriate training to those who would be directly involved in the emergency response plan.
• Consider liability insurance to protect against claims for failing to protect others from exposure to infection on your premises.