The Novel (new) Coronavirus disease 2019 (“COVID-19” or “Coronavirus”) is a rapidly spreading respiratory illness that started in Wuhan, China, but has spread to a growing number of locations internationally, including the United States. It is raising important issues for employers, as employers must balance their obligation to maintain a safe and healthful workplace with an employee’s right to be free from discrimination. While this alert addresses the legal framework pertaining to Coronavirus risks in the workplace, the information from public health officials is changing rapidly as the disease spreads, so employers should continue to monitor guidance provided by agencies charged with guiding the public, such as the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies.

Government Response

On January 31, 2020, U.S. Department of Health and Human (“HHS”) declared a public health emergency for the United States to aid the nation’s healthcare community in responding to the Coronavirus.  Because of this declaration, the U.S. government has taken the following unprecedented steps with respect to travel:

  • Suspended entry of foreign nationals who have been in China within the past 14 days.
  • Suspended entry of foreign nationals who have been in Iran with in the past 14 days.
  • U.S. citizens, residents and their immediate family members who have been in Hubei province and other parts of China can enter the United States, but they are subject to health monitoring and possible quarantine for up to 14 days.

The CDC has issued a Level 3 travel warning for China, Iran, Italy and South Korea, and is recommending that individuals avoid all nonessential travel to these countries. Further, the CDC has issued a Level 2 alert – Practice Enhanced Precautions – for Japan, and a Level 1 watch – Practice Usual Precautions – for travel to Hong Kong. As of this time, however, cases have been identified on all continents except Antarctica.

The CDC has indicated that the fact this disease has caused illness, death and sustained person-to-person spread is concerning, and the preliminary information raises the level of concern about the immediate threat for the Coronavirus for certain communities in the United States. The CDC’s current risk assessment is that the “potential public health threat posed by COVID-19 is very high, to the United States and globally.”  However, most people in the United States, will have “little immediate risk or exposure” to this virus, as follows:

  • For the general public, who are unlikely to be exposed to this virus, the immediate health risk is considered low.
  • For people in communities where ongoing spread of the Coronavirus has been reported, they are at elevated though still relatively low risk of exposure.
  • Healthcare workers caring for patients with Coronavirus are at elevated risk of exposure.
  • Those in close contact with persons with Coronavirus are also at elevated risk of exposure.
  • Travelers returning from affected international locations where community spread is occurring also are at elevated risk of exposure.

Some states and municipalities have also issued guidance addressing the Coronavirus, but New York has not.  As of March 2, 2020, there is one confirmed case of Coronavirus in New York City

CDC Interim Guidance for Businesses and Employers

The CDC published an Interim Guidance for Businesses and Employers, to help prevent workplace exposure to the Coronavirus in non-healthcare settings, and to plan in the event of more widespread, community outbreaks.  However, the Interim Guidance cautions employers to use the guidance to determine the risk of Coronavirus, and not to make determinations of risk based on race or country of origin, and to maintain confidentiality of people with confirmed disease.  The Interim Guidance advises employers to:

  • Actively encourage sick employees to stay home.
    • Ensure sick leave policies are flexible and consistent with public health guidance and that employees are aware of the policies
    • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
    • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness, as healthcare providers may be extremely busy
    • Employers should maintain flexible policies that permit staying home to care for a sick family member.
  • Separate sick employees who appear to have acute respiratory symptoms and send them home immediately.
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene of all employees
    • Place posters that encourage staying at home when sick, and that display cough and sneeze etiquette, and hand hygiene, where they are likely to be seen
    • Provide no-touch disposal receptacles for use by employees
    • Instruct employees to clean their hands often
    • Provide soap and hand sanitizer in the workplace
  • Perform routine evening cleaning. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Advise employees before traveling to take certain steps
    • Check the CDC’s Traveler’s Health Notices for the latest guidance for each country
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel
    • Notify their supervisor if they become sick while traveling and promptly call a healthcare provider
  • Additional measures in response to currently occurring sporadic importations of the Coronavirus. 
    • Employees who are well but have sick family members at home with Coronavirus should notify their supervisor and refer to the CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have the Coronavirus, employers should inform fellow employees of their possible exposure in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act.
    • Employees exposed to a co-worker with confirmed Coronavirus should refer to the CDC guidance for how to conduct a risk assessment of their potential exposure.

CDC Information for Healthcare Professionals

The CDC has also published multiple guidance information for health care professionals, including interim guidance for the following:

Creating an Infectious Disease Outbreak Plan

The CDC also encourages employers to plan to be able to respond to a possible Coronavirus outbreak in the United States.  The CDC recommends the following guidelines for creating an infectious disease outbreak plan:

  • Identify possible work-related exposure and health risks to employees (including reviewing materials from the Occupational Safety and Health Administration (“OSHA”)).
  • Coordinate policies to make sure they are consistent with existing state and federal workplace laws, including with leaves, accommodations, and flexible working arrangements.
  • Establish flexible working arrangements, including telecommuting, and staggered shifts to increase the physical distance among employees if state and local health authorities recommend the use of social distancing strategies.  For employees who can telework, consider IT needs to support a remote workforce while maintaining data security, especially for Health Insurance Portability and Accountability Act (“HIPAA”)-covered entities.
  • Identify essential business functions, essential jobs or roles, and critical elements within a company’s supply chains required to maintain business operations and plan for interruptions.
  • Set up authorities, triggers and procedures for activating and terminating the company’s infectious disease outbreak response plan, altering business operations, and transferring business knowledge to key employees.
  • Plan to minimize exposure between employees.
  • Establish a process to communicate information to employees and business partners on your outbreak response plan.
  • Plan for school closures.
  • If there is an outbreak, consider canceling non-essential business travel per the CDC’s travel guidance.
  • Coordinate with state and local health departments


Considerations for Employers

ADA and FMLA Protections

Under the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act, an employee with Coronavirus could fall within the definition of a “qualified individual with a disability” and be protected by the ADA, as well as state and local disability laws.  Moreover, individual exposed to Coronavirus, or thought to be exposed (such as those who travelled to high risk areas), may be able “regarded as” having the illness.

Similarly, an employee diagnosed with Coronavirus would likely constitute a serious health condition under the Family and Medical Leave Act (“FMLA”) and eligible for FMLA leave.

Testing

Under the ADA, an employer cannot make medical inquiries of employees unless it is voluntary or job-related and consistent with business necessity. If an employer makes such inquiries, it must follow the ADA guidelines pertaining to medical records, which require that they be maintained as confidential and kept separate and apart from the employee’s personnel file.  The employer must also limit the distribution of such information to individuals with a legitimate need to know.

Nonetheless, if an employee poses a direct threat to the health or safety of himself/herself or to others, then an employer can require the employee to disclose health information. A positive test for the Coronavirus would likely fall within this category. Similarly, an employee who may have been exposed to the Coronavirus and demonstrates symptoms, may also fall within this category. If the employee is represented by a union and covered by a collective bargaining agreement, the employer may have an obligation to notify the bargaining representatives and to meet, confer, and possibly negotiate before implementing mandatory testing.

The CDC’s test to determine whether an individual has contracted Coronavirus is, at this time, only available at a laboratory that the CDC has designated as qualified but will soon share the tests around the country. It is unclear whether testing will be made available to most health care practitioners.  New York has asked the CDC for authorization to test in-state, rather than requiring samples to be sent to the CDC’s headquarters. New York is also creating its own test for COVID-19.

It is not clear whether employees who are concerned about exposure to COVID-19 may seek a test for Coronavirus from their own health care provider. Thus, if any employee raises a concern about exposure to Coronavirus and potential symptoms, employers should encourage the employee to seek emergency assistance and contact their state/local health department(s).

Travel and Quarantine (Mandatory or Self-Imposed)

As noted above, the CDC has advised avoiding all nonessential travel to China, South Korea, Iran and Italy, and has warned against travel to Japan. The United States has imposed mandatory quarantines for over 300 individuals at military bases in California, Colorado, Nebraska, and Texas. Based on HHS guidance, many employers are also requiring a 14-day self-quarantine – restricting employees who have returned from certain countries with a higher risk of COVID-19 from coming into the office.

During a self-imposed quarantine, employers may permit employees to work remotely, if their job duties permit. For employees who cannot work from home, employers may want to consider whether to apply paid time off under vacation, sick, and/or other time off policies and applicable law, or to provide pay to quarantined employees separate and apart from the employee’s accrued time off. Employers must also consider applicable collective bargaining agreements in the case of union-represented workers.

Employers should consider whether travel to large conferences or events is essential at this time and may wish to make attendance optional, especially if it is likely that attendees will have traveled from areas impacted by COVID‑19. With regard to making attendance optional, employers should make clear that employees need not provide any explanation for their decision not to attend, in order to maintain confidentiality of protected characteristics, such as the employee’s health (e.g., compromised immune system, pregnancy, etc.) or caregiver status (e.g., elderly relatives in the home).

Packages

The World Health Organization (“WHO”) has issued guidance confirming that it is safe to receive packages from China and other places where the Coronavirus has been identified.

Places of Public Accommodation

Title III of the ADA requires places of public accommodation to afford the full range of their services and activities to individuals with disabilities.  If an employer’s place of business is open to the public, and thus some or all of its workplace is considered a place of public accommodation, the employer should be cautious when refusing service to certain groups of individuals.  Employers should ensure that customers are not refused service or singled out based on their ethnicity or national origin.

Communications with Employees

Many employers are sending communications to employees with general information about the Coronavirus, including the symptoms. Additionally, some employers have advised their employees that if they are concerned that they may have been exposed to the Coronavirus, or if they have recently traveled to certain countries with a higher risk of COVID-19, they should not come into work and should contact the local health department or the CDC. As noted above, the U.S. government is recommending that anyone returning from China engage in a 14-day self-imposed quarantine.

Discrimination

If an employer has a reasonable belief that an employee may have the Coronavirus, then the employer may send that person home to protect the rest of the workforce. However, discrimination claims can arise if an employee is singled out based on some protected characteristic. Employers should be mindful to treat all employees with potential exposure the same, and not just those employees who may be of Chinese descent.

Visa Renewals

The U.S. suspension of entry of immigrants and non-immigrants who were physically in China, can impact U.S. employers, as can an employer’s reluctance to permit employees to go abroad for visa renewals and extensions of work authorizations. Employers should consider the possible problematic effects of the lack of work authorizations. If travel to an employee’s country of origin is not feasible, employers may suggest that employees seek extensions of non-immigrant status with U.S. Citizenship and Immigrations Services. When a timely application is made, this can secure continued work authorizations.

What Employers Should Do Now

  • Appoint a single individual as the point of contact within your company for questions about Coronavirus to ensure a coordinated and consistent response to all inquiries.
  • Provide employees with updated information about the symptoms of the Coronavirus.
  • Educate supervisors on the company’s planned preventative steps.
  • Review whether travel is necessary to high-risk areas.
  • Determine if additional obligations are imposed by HIPAA Privacy Rules.
  • Assure that your policies and practices meet OSHA and CDC standards, especially for health care employees when blood-borne pathogens may be present.
  • Consider whether any issues need to be addressed with the company’s collective bargaining unit and whether there are any provisions in the collective bargaining agreements may be affected.
  • Address requests from employees for leaves and accommodations and remind employees of leave and call-out policies.
  • Determine if telework is available for employees who will not be allowed in the office due to exposure or symptoms.  Otherwise, determine whether such employees will be paid for the leave or, can use other types of accrued paid leave.
  • Consider creating an infectious disease outbreak plan.

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If you have any questions concerning this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP