With the continued spread of COVID-19, more commonly known as the “Coronavirus,” employers and employees alike are becoming increasingly concerned about workplace health and safety. If they have not done so already, employers should begin proactively considering safety measures to help prevent an outbreak in the workplace, while also being mindful of the potential legal risks associated with adopting such measures.
The Symptoms and Spread of the Coronavirus
The Coronavirus, which originated in Wuhan, China, is a contagious illness that reportedly causes mild to severe respiratory symptoms, such as fever, cough, and breathing difficulties. The Centers for Disease Control and Prevention (“CDC”) believes that individuals who contract the virus show symptoms within two (2) to fourteen (14) days after exposure. However, some infected individuals have shown little to no symptoms, making it more difficult to contain the spread of the virus. According to the latest information, approximately two percent (2%) of the confirmed cases have resulted in death, the majority of which occurring in China, Hong Kong, South Korea, Japan, and Iran. On February 29, 2020, the first reported death in the United States due to the Coronavirus occurred in Washington.
Experts believe that the Coronavirus is spreading from person-to-person in a similar fashion as the spread of a cold or flu, but not enough information is available to definitively ascertain all other forms of transmission. The “community spread” of the Coronavirus is believed to now be occurring in the United States, meaning that some infected individuals are not sure how they contracted the virus, which will surely result in the reporting of more confirmed cases in the coming days/weeks.
While no Coronavirus vaccine is presently available, the CDC recommends that people use the typical precautions in preventing the spread of other respiratory viruses. Namely, these precautions include: frequently washing your hands, using hand sanitizer, disinfecting community spaces, avoiding contact with people who are sick, and staying home when you feel sick.
Employers should regularly consult the CDC’s website to receive updates on the Coronavirus outbreak.
Travel Restrictions and Quarantines
Employers (particularly those who require employees to travel abroad) should be wary of the current travel restrictions and quarantines in effect. Both the CDC and the United States Department of State have issued travel advisories in light of the Coronavirus outbreak. As these travel advisories are subject to change, employers should regularly consult the agencies’ websites for the most up-to-date information.
The following mandates are currently being imposed upon United States citizens:
- All United States citizens arriving in the United States who have been in the Hubei province in China within two (2) weeks prior to their return to the United States are subject to a mandatory quarantine of up to fourteen (14) days.
- All United States citizens arriving in the United States who traveled to the remainder of mainland China within two (2) weeks prior to their return to the United States will receive a health screening at selected ports of entry and are subject to up to fourteen (14) days of “monitored self-quarantine.”
Further, foreign nationals who have traveled to China and Iran within the last fourteen (14) days are currently suspended from entering the United States, except for the immediate family of United States citizens or permanent residents.
Employee Protections to Consider When Adopting Workplace Safety Measures
In assessing what measures to take to protect their workforces, employers should be cognizant that the Americans with Disabilities Act (“ADA”) and similar local laws place restrictions on inquiring about an employee’s medical condition. Indeed, employers are prohibited from inquiring about an employee’s disability and/or requiring medical examinations, unless: (1) the employer can demonstrate that the inquiry or examination is a business necessity and job-related or (2) the employer can show that it has a reasonable belief that the employee poses a “direct threat” to the health or safety of others that cannot be alternatively eliminated or reduced by other measures.
In 2009, the Equal Employment Opportunity Commission (“EEOC”) published the Pandemic Preparedness Guidance, which discusses what constitutes a “direct threat” under the ADA. In essence, the severity of the outbreak at issue correlates to whether the outbreak rises to the level of a “direct threat” under the law. As a result, employers must consult the latest information provided by the CDC and/or other public officials to assess the severity level of the outbreak and whether an employee who has been exposed to the illness may be a “direct threat” to the greater workforce. Presently, the CDC has not classified the Coronavirus as a pandemic, but that may change as the situation evolves.
Practical Guidance for Employers
Last month, the CDC issued Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus (2019-nCoV), February 2020, which employers should consult for strategies in preventing the spread of the virus in the workplace. Further, the Occupational Safety and Health Administration (“OSHA”) also released general guidance on the Coronavirus. Overall, employers should continue to monitor these websites for the latest guidance on the outbreak.
Based on the above guidance, employers should consider taking the following precautions:
- Encourage sick employees to stay home from work and adopt a protocol to send employees home if they have symptoms of a communicable illness while at work. As noted above, employers should keep the “direct threat” analysis in mind when requiring employees showing symptoms of illness to go home from work.
- Adopt a policy requiring employees who have traveled to the affected areas subject to travel advisories and/or quarantine requirements or who have come into possible contact with an affected person to stay home for a period of time to assess whether any symptoms develop.
- Inquire about whether an employee has traveled to an affected area or otherwise been exposed to the Coronavirus to assess the potential for risk. Notably, however, such inquiries should be made to all employees and should not be directed to employees of certain races, national origins, or ethnicities. Indeed, employers should remain vigilant in identifying and promptly addressing any instances of discriminatory animus based on any such protected category.
- Consider imposing business travel bans to affected areas as requiring such travel could violate an employer’s duty to provide a workplace that is free from recognized hazards that are likely to cause harm to employees. Employers may also consider imposing restrictions on employees for non-business travel purposes, but should be wary of the risk associated with attempting to regulate personal travel. Indeed, while recent court decisions have held that making an employment decision based on the potential for an employee to become ill in the future is not covered by the ADA, the EEOC has argued to the contrary in the past. Before imposing any travel restrictions on employees, employers should review the most up-to-date guidance issued by the CDC and other governmental agencies.
- Educate the workforce about the Coronavirus, including providing information about its typical symptoms, how it is transmitted, and general tips on avoiding infection.
- Ensure the workplace itself is appropriately cleaned and make disinfecting products available to employees, like hand sanitizer and disposable wipes for office surfaces. Employers in higher-risk industries, such as the healthcare field, should also consider providing protective equipment or clothing to employees.
- Appoint an employee to monitor the CDC’s website on a daily basis as the guidance may change. Further, this employee should also monitor the state and local government agencies’ websites for localized information.
- If an employee is diagnosed as having the Coronavirus, the employer “should inform fellow employees of their possible exposure to [the Coronavirus] in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”
Overall, employers should speak with counsel regarding implementing the measures above and enacting any such measures in a non-discriminatory fashion. As the spread and severity of the Coronavirus outbreak is developing, employers need to remain vigilant in monitoring any updated guidance issued by governmental agencies.