Safeguarding the Workplace from the Coronavirus: Tips for Employers

It seems that every day in January and February of 2020 all forms of media have been filled with news of how the Coronavirus is spreading and its growing impact on businesses, multiple industries and increasingly the lives of people all over the world. With each newly reported story of cases of the Novel Coronavirus (also referred to as COVID-19, 2019-nCoV, or SARS-CoV-2, but more commonly known simply as the “Coronavirus”) employers have been prompted to refocus on employee safety and ways to address disease prevention in the workplace. Per the Occupational Safety and Health Administration (OSHA), “most American workers are not at significant risk of infection” at this time. While this might provide some brief comfort, the situation is evolving, and more and more respected members of the medical community are warning that we are on the verge of a pandemic. For employers, it is never too early to consider how they can address employee concerns, help prevent an outbreak, or develop and proactively provide a plan to address one if it occurs.  Employers should also be aware of legal risks and pitfalls that they may encounter when attempting to protect their employees from the virus.

This article addresses a few of the key questions employers may have regarding the Coronavirus threat.  The CDC has released guidance specifically directed to businesses which outlines recommendations and best practices on protecting the workplace. CDC Guidance for Businesses

The Coronavirus and How It Spreads:

As a newly discovered virus, there is unfortunately little which is known about the Coronavirus.  The initial reports of the illness appear to have originated in Wuhan, China, where people likely contracted the virus from animals at a seafood and animal market. The CDC believes that the virus is spreading from human-to-human when an infected person coughs or sneezes, sending mucus and droplets of sputum into the air or onto a surface, similar to the spread of a cold or flu.  Despite such assumptions, it is truly still too early to know how easily the virus is transmitted between people, or whether other forms of transmission may be occurring (e.g., surface transmission or through other bodily fluids).

The first United States case of person-to-person transmission was only reported on January 30, 2020 when a woman previously diagnosed with Coronavirus after returning from Wuhan transmitted the virus to her husband. Currently, the CDC reports the number of confirmed cases diagnosed in the U.S. is reported by the CDC to be at a total of 14 (with another 39 additional cases of Americans repatriated from Wuhan or from cruise ship travel), with further non-confirmed cases remaining under investigation in a number of states. 

 In addition to direct transmission, concerns are growing due to the apparent impact of “community spread.” The CDC defines community spread as person-to-person transmission in which some people have been infected who are not sure how or where they became infected. Community spread is thought to be the impetus behind surging diagnosed infections in China, South Korea, Hong Kong, Italy, Japan, Iran, Singapore, Thailand, Taiwan, and Vietnam. Community spread has not yet been detected in the U.S. However, the CDC is now warning that community spread within the U.S. is not just possible, or even likely, but rather it is expected in the coming months.

Symptoms of the Coronavirus:  To date, confirmed cases of Coronavirus have reported mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties.  When the cases are classified as “severe cases,” the virus has led to pneumonia and kidney failure and has resulted in an increasing number of deaths. The majority of deaths have occurred in Wuhan, the epicenter of the virus. As the Coronavirus has spread, death counts are rising outside of Wuhan and China with the Philippines reporting the first death outside of China on February 1, 2020. In the following 25 days alone, deaths were reported in Hong Kong, Taiwan, South Korea, Japan, France, and Iran. Though little is still known for certain about the virus, the CDC has concluded that symptoms may appear within two to fourteen days after exposure. This information is not conclusive, however, as some infected individuals have shown little to no symptoms both inside and beyond the fourteen day window. CDC Summary of Coronavirus

Current Guidance to Prevent the Spread of the Coronavirus:  There is no vaccine currently available for the Coronavirus. Further, despite fabricated stories on the news and social media sites, the likelihood of an effective vaccine during the 2020 calendar year is slim. In the absence of a Coronavirus vaccine being available, the CDC recommends standard precautions to avoid the spread of respiratory viruses, such as washing hands thoroughly with soap and water for at least 20 seconds, or, if soap is not available, using hand sanitizer; being cautious when touching surfaces such as handrails, public bathroom counters, elevator buttons and similar surfaces and then making contact with your own mouth prior to proper hand washing; avoiding close contact with people who are sick; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.

Traveling Employees:  Due to concerns posed by the evident transmission of the Coronavirus through travel, the CDC has issued a level 3 travel notice (the highest threat level) recommending that people avoid all nonessential travel to China at this time. On February 24, 2020, the CDC also issued a level 3 travel notice for South Korea encouraging travelers to avoid travel there for nonessential travel. Level 2 travel notices have been issued for Italy, Japan, and Iran, with the CDC advising older adults and/or those with chronic medical conditions to practice heightened precautions while traveling or consider postponing nonessential travel all together. The CDC further issued a level 1 travel notice for Hong Kong, recommending that travelers follow usual sanitary precautions (such as proper hand washing, avoiding contact with those who are sick, and watching for potential Coronavirus symptoms). Despite its proximity to China, the CDC is not currently recommending that travelers cancel or postpone travel to Hong Kong.

Underscoring the worldwide impact of the health crisis, the World Health Organization (WHO) on January 30, 2020, declared a global health emergency over the spread of Coronavirus. The WHO’s statement stresses that further international impact and spreading of the virus is expected, and that cases may appear in any country. Following the WHO’s declaration, the U.S State Department raised its China travel advisory on January 30th to Level 4: Do Not Travel. The new and stronger 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.” In addition, The State Department has also issued Level 2: Exercise Increased Caution advisories for South Korea, Hong Kong, Japan, and Macau.

Further underscoring the concerns about the spreading virus and protecting U.S. borders, the U.S. Health and Human Services Secretary Alex Azar stated on January 31, 2020 that a “public health emergency has been declared in the U.S. and, effective 5:00 pm EST on Sunday, February 2, 2020:

• all U.S. citizens returning to the U.S. who have been in Hubei province in the preceding two weeks will be subject to up to 14 days of mandatory quarantine; and
• U.S. citizens returning from any other part 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 to others within the U.S..

As an added measure of protection, President Trump signed a proclamation suspending the entry into the U.S. of foreign nationals who have traveled in China in the last two weeks. Despite the presidential proclamation, foreign nationals who are the immediate family of U.S. citizens or permanent residents currently are exempt from the suspension.

Employer Considerations: Employers whose employees travel to and from affected areas should immediately consider the following:

• Should Travel to Affected Areas Be Limited: The General Duty Clause of OSHA provides for a non-delegable duty to 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.” OSHA has not yet enacted and published specific standards covering the Coronavirus. However, with the knowledge of higher risk zones for transmission, requiring employees to engage in business travel to China or South Korea (or any other areas in which the risk of contagion is heightened) could create undue risk under the General Duty Clause. The risk is magnified 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. Consequently, employers whose business may involve travel to China or South Korea (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, if at all possible. Employers should 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 or delaying such travel.

Although employers may implement restrictions on work-related travel to affected areas, they should also be cautious when attempting to police personal, non-work-related travel.  Employers should consider the risks (as well as the feasibility) relating to imposing any attempt to ban personal, non-work-related travel to affected areas.

Addressing an Employee Who Recently Traveled to an Affected Area and Was Possibly Exposed:

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 the EEOC’s 2009 Guidance (entitled “Pandemic Preparedness Guidance”), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. 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 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 specific location,. Employers cannot and should not rely on speculation or unofficial information when making a direct threat determination. At the moment, the CDC is not classifying the Coronavirus as a pandemic, but such a designation, especially if coupled with rising confirmed infection levels in a community, would be factors to consider in weighing a direct threat designation, along with the following:

• Employers are not required to 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. The extent to which an employer may act on the information received from the inquiry 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, ages 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 traveled to key affected areas to stay home. The State Department has issued a Level 4: Do Not Travel notice for China and the CDC has issued a Level 3 (Avoid Nonessential Travel) travel notice. The U.S. is also 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. The CDC also recently has issued for Korea a Level 3 (Avoid Nonessential Travel) travel notice. In light of these and other developments, an employer may require an employee who is returning from travel to China or South Korea (or other key affected areas) to stay home for a period of time to ensure that no symptoms develop during the stated incubation period. Where there is no formal “self-quarantine” policy, if an employee has traveled to an 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. These protections are not just for the recently traveling employee but also due to the employer’s duty to provide a reasonably safe workplace for all employees. Employers considering such travel-related measures would be wise to consult with counsel, as certain considerations including anti-discrimination, wage and hour, and leave policies may be implicated. Due to the daily changing of such warnings, information and concerns, employers should also continue to monitor the CDC website and other news sources for further developments.

Proactive Options for Employers Concerning the Coronavirus:

• Implement a Policy to Send Employees Home if Exhibiting Symptoms at Work. According to the EEOC, sending an employee home with visible symptoms of contagious illness would not run afoul of the ADA’s restrictions on disability-related actions. The EEOC allows such actions (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 been a covered disability under the protections of the ADA; and (ii) if the illness does evolve into a designation as severe (such that it may constitute a disability under the law), then the employer actions would still be warranted under a direct threat analysis. Regardless, an employer can send an employee home who is displaying symptoms of contagious illness, even if this is against the employee’s wishes. It would also be prudent for employers to consider making policies unambiguous that employees who have symptoms of a potential contagious illness must not report to work while they are sick.
• Consider the FMLA or other leave laws. Under the federal Family and Medical Leave Act (FMLA) or similar acts under state law, 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.  Further, 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. Despite such protections, employees generally are not entitled to take FMLA or reasonable accommodation leave to stay at home to avoid getting sick (exceptions may arise where a preexisting medical condition might be worsened by exposure to a contagious disease).

Evaluate Whether and Which OSHA Requirements Apply. OSHA has not yet issued specific standards covering the Coronavirus, but OSHA has issued a reminder notice for employers stressing that employers should be mindful of the following general standards to which employers may be subject under OSHA:

• The General Duty Clause: OSHA’s 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.” With this general duty in mind, there are some readily achievable steps that employers can take to help prevent the spread of the Coronavirus (and other contagious illnesses) within the workplace, such as: providing hand sanitizer and disposable surface wipes to employees, ensuring that public 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 for extended periods of time.
• Personal Protective Equipment: Employers are required by OSHA to provide protective equipment, clothing, and barriers whenever it is necessary to prevent employees from being exposed to environmental hazards. The burden is on employers as they are required to assess the workplace, determine if hazards are present, and if so, select and have employees use protective equipment. Certain employees who have a greater risk of an encounter with individuals infected with the Coronavirus, such as those in the healthcare, mortuary service and travel industries, should begin to consider what employer-provided protective equipment would be necessary to protect its workforce should the virus begin to spread within the U.S.
• Recordkeeping Requirements: OSHA requires certain employers to keep a record of work-related illness and injuries (often referred to as an OSHA Form 300 log). Although there is a regulatory exemption for recording instances of the standard cold and flu, OSHA has determined that the 2019 Novel Coronavirus is a “recordable illness” when a worker is infected on the job. Beyond OSHA’s requirements, state and local laws might require recordkeeping of such cases if employers have a reasonable belief that a significant disease is present in the workplace.

The old adage remains true – “an ounce of prevention is worth a pound of cure”.  Prudent employers know that a little precaution and proactive planning before a pandemic-related crisis impacts their business operations is preferable to the need for a lot of fixing up after the crisis has already hit. All employers would be wise to be proactive in discussing (i) how to react in the event Coronavirus impacts their community or business, and (ii) their policies and plans to avoid business interruption as issues may arise. Employers can look to the CDC, OSHA and the WHO websites for updated information and guidance, as well as the latest precautions. Employers who find they have an increased likelihood of being affected by or encountering the Coronavirus should carefully review current policies for updating and/or changes, and consult with counsel to ensure proper protections and updated policies are in place. 

Peyton N. Smith is a Labor & Employment Attorney and the Office Managing Partner of the Austin Office of McGuireWoods LLP.

(Please note that this communication is intended to provide information of general interest to the public. This communication is not intended to offer legal advice about specific situations or problems. The author does not intend to create an attorney-client relationship by offering general interest information, and reliance on information presented in this public communications does not create such a relationship. You should consult a lawyer if you need legal advice regarding a specific situation or problem.)