As coronavirus strain 2019-nCoV1 continues to spread beyond China, including multiple confirmed U.S. cases, employers are faced with providing a safe and healthy work environment for their employees while avoiding accidental (and sometimes non-intuitive) legal liability stemming from well-meaning policies and preventative measures.
This article discusses resources available to employers with regard to addressing a possible outbreak, best practices for worker safety, and potential legal pitfalls employers face when confronting a potential pandemic.
As with any serious disease or viral outbreak, issues related to the coronavirus are evolving. Employers should stay abreast of developments from authorities such as the U.S. Centers for Disease Control (CDC) and the World Health Organization (WHO), and seek advice from expert legal counsel regarding specific legal concerns.
Concerned and potentially affected employers should closely monitor the CDC and WHO websites and consider policies and communication plans for employees, vendors, and customers, particularly if the employer is in a high-risk environment, has workers traveling to/from affected areas, or if the employer is receiving questions from employees, vendors, or customers.
Employers should consider proactively sharing educational information from authoritative sources with employees on what is known about the virus, its transmission, and how to prevent exposure.
Symptoms and Preventative Actions
According to authorities, symptoms of the coronavirus include: mild to severe respiratory illness with fever, cough, and difficulty breathing. To better evaluate which geographic areas pose the most risk, employers and employees should consult the latest CDC Travel Health Notices. Anyone traveling to an area with a confirmed coronavirus case should closely monitor their health for a period of 14 days.
Currently, the CDC recommends everyday preventative actions including:
- Washing hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
- Avoiding touching your eyes, nose, and mouth with unwashed hands.
- Avoiding close contact with people who are sick.
- Staying home when sick.
- Covering your cough or sneeze with a tissue, then throwing the tissue in the trash.
- Cleaning and disinfecting frequently touched objects and surfaces.
Consistent with CDC recommendations, employers should consider providing appropriate health and sanitation supplies in and around the workplace including soap, paper towels, and tissues (as well as proper disposal containers). Depending on circumstances and the employer’s assessment of other reasonable and effective mitigation measures, many employers are considering providing alcohol-based hand sanitizers, and possibly masks or respirators.
Policies to Prevent Exposure and Transmission
The federal Occupational Safety and Health Act (OSHA) (and its state-law counterparts) imposes a duty on all employers to furnish each employee with a workplace free from recognized hazards likely to cause death or serious physical harm. To date, there have not been a significant number of confirmed coronavirus cases in the United States.
However, in-person interactions with persons who have traveled to and from areas with significant coronavirus incidence rates may increase the risk of exposure for an employer’s workforce. Employee travel to areas with significant incidence rates may cause fear and apprehension among co-workers of possible exposure to the virus, thus negatively affecting morale and productivity. The CDC recommends that travelers avoid all nonessential travel to China.
- To address travel-related concerns, employers should consider adopting policies that require employees to provide notice of plans to travel to areas identified by the CDC and WHO as posing the greatest risk . Employers should refer back regularly to the CDC and WHO websites to make sure their information about geographic areas of risk is up to date.
Employers should consider providing employees traveling to these areas or having to interact with individuals who have recently been in such areas, with guidance from the CDC or WHO on how to minimize the risk of contracting coronavirus . Further, employers should consider requiring employees who return from travel to areas with confirmed cases to work remotely for a reasonable period of time (e.g., during the coronavirus’s anticipated incubation period).
Scope and Distribution of Policies
Any travel policies should be narrowly focused and apply only with regard to specific geographic areas identified by the CDC and WHO as high-risk. In addition, travel policies should be in writing and distributed to all employees, not just to employees who the employer believes is or may be considering travel to high-risk areas.
By so doing, the employer can avoid the appearance of discrimination and limit potential race, national origin, or other discrimination claims, while helping to protect the health and well-being of employees.
Paid Sick Leave and Other Considerations
Employers should remind all employees (not just those who are or may travel to high-risk areas) of the employer’s leave policies. Employees who feel unwell, especially with flu-like symptoms, should be aware of available sick leave benefits, consider seeking medical attention if appropriate, and stay away from the workplace until they recover.
If an employer requires an employee to stay home or the employee stays home voluntarily due to illness or to care for a sick family member, the employer must ensure compliance with federal, state, and local sick and family medical leave laws. These laws may give employees the right to take protected leave under certain circumstances, and depending on applicable state or local law, such leave may be required to be paid.
- For example, in Washington state, a qualifying employee can take up to 12 weeks of paid medical leave for serious health conditions, which could include coronavirus infections. Failure to comply with these obligations could lead to employer liability.
As mentioned above, employers should consider requiring employees who travel to a high-risk area to wait a period of time (e.g., the incubation period) before returning to work. Such policies need to be carefully crafted to avoid discrimination claims and take advantage of legal safe harbor provisions.
Employers are advised to consult with expert legal counsel to help limit potential legal liability. For example, the Americans with Disabilities Act (ADA) has a narrow provision allowing an employer to place an employee on leave if objective evidence exists indicating that the employee’s presence at work constitutes a direct threat and “a significant risk of substantial harm to the health or safety” of the employee or others.
- Employers need to be wary about asking employees to provide medical information, as this can trigger recordkeeping obligations and run afoul of the ADA.
Avoiding Retaliation Claims
If infection rates in the United States climb, some employees may become fearful of infection and stay home, despite not being ill or having a need to care for family members. Although such conduct may violate an employer’s attendance or remote working policies, employers should exercise caution regarding discipline if the reason for staying away from the workplace is an employee’s fear for his or her safety or health at work.
If such fears are reasonable, OSHA and state-law equivalents may prohibit employers from disciplining employees for avoiding the workplace. Whether a fear is “reasonable” is highly fact-sensitive, and employers with questions should consult with expert legal counsel.
On a practical level, employers should also consider employee morale and potential declining productivity associated with employee preoccupation with a fear of infection and consider accommodating reasonable requests, such as working remotely or use of vacation leave or paid time off without advance notice, on a temporary basis where feasible.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.
1 Coronaviruses are a large family of viruses that include Severe Acute Respiratory Syndrome (SARS) and the Middle East Respiratory Syndrome (MERS). According to various reports and the CDC, the virus at issue here appears to have originated in or around Wuhan, China, with a potential link to a large seafood and animal market there. At this time the CDC refers to the virus as the 2019 Novel Coronavirus (2019-nCoV).