With the U.S. bracing itself against the impending onslaught of the 2019 Novel Coronavirus, employers need to think about workplace safety and prevention. Although OSHA reports that “most American workers are not at significant risk of infection” at this time, the situation is evolving by the minute and employers need to anticipate concerns of employees, implement steps to be taken, and avoid legal pitfalls.
As of this writing, there are currently 24,642 confirmed cases in 28 countries, with over 500 deaths reported. Apparently, it spreads when an infected person coughs or sneezes, similar to the spread of a cold or flu. Victims may experience fever, cough, shortness of breath, and respiratory breathing difficulties and, in severe cases, pneumonia, kidney failure, and, in at least 500 cases, death (most all in China). 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. There is no Coronavirus vaccine currently available and standard precautions are recommended: washing hands with soap and water for at least 20 seconds, or, if soap is not available, using hand sanitizer; disinfecting touchable objects and surfaces; avoiding close contact with people who are sick; staying home when sick (see: https://www.cdc.gov/flu/business/stay-home-when-sick.htm).
What’s An Employer To Do?
- Employers should have their employees avoid all nonessential travel to China and affected areas. The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to provide “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.” Therefore, even though an employer has discretion to determine job duties and requirements, and can discipline employees who refuse to perform, employers should provide other options for employees whose business might have otherwise brought them to China or other affected areas (e.g., videoconferencing). Note that those travelling abroad may have their travel held up or interrupted if the area is designated as affected while the employee is still there.
- Employers can consider taking action against an employee who takes a personal visit to China or an affected area. Recent cases point out that laws prohibiting disability discrimination (ADA, etc.) do not apply if the employer acts to prevent the potential that an employee might become ill and disabled in the future (and affect co-workers). If an employee has traveled to China or an affected area, an employer can inquire about disabilities or require medical testing if: a) the exam is job-related per business necessity; or b) the employee reasonably poses a direct threat to health or safety. Employers don’t need to wait for symptoms to develop. The employer should not single out particular types of employees for scrutiny (i.e., members of certain protected classes), otherwise that might constitute discrimination. Employers need to keep confidential all medical-related information obtained.
- Employers could force employees who have traveled to China, or areas affected by serious health threats, to stay home for several days until it is clear they do not have symptoms. An employer may also require an employee who traveled to an affected area to remain out of work for the suggested period of time.
- Employers should send home employees with symptoms of contagious sicknesses, even against the employee’s wishes. Employers should also have a policy that employees with symptoms of a potentially contagious illness are forbidden to report to work.
- Employers should consider whether leave laws (e.g., FMLA) apply. If an employee (or that employee’s family member) has a “serious health condition,” the employee may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or state-law equivalents. Likewise, leave may be available under the ADA, if the condition qualifies as a disability. Note that employees are not allowed to stay home to avoid getting sick (except if the employee already has a condition that may become worsened). In some states, employees can have paid time off to care for themselves or a family member, or if schools close, or if there’s a public emergency.
- Employers must comply with the “General Duty Clause” OSHA requirement to ensure that the workplace is free from recognized hazards that are causing or likely to cause the death or serious physical harm to employees. In the face of a pandemic virus, employees should consider encouraging sick employees to stay at, or work from, home, providing hand sanitizer, disinfecting surfaces and eating areas, providing protective equipment, clothing, and barriers whenever it is necessary to prevent employees from being exposed to environmental hazards. OSHA may soon establish special requirements for Employers in Higher-Risk Industries.
- Employers must comply with Recordkeeping and Reporting Requirements as to certain work-related illnesses and injuries (which, according to OSHA, includes the Coronavirus).
The old adage is “when in doubt, it’s better to be safe than sorry.”
Schwarzberg & Associates provides employment law compliance and defense assistance. We have extensive experience in developing effective policies, procedures, and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact Steve Schwarzberg at firstname.lastname@example.org or (561) 659-3300.