Authors: Jeremy Mittman and Thea Rogers
This week, the U.S. Centers for Disease Control and Prevention (CDC) warned that the Coronavirus, otherwise known as COVID-19, will likely continue its spread around the world and to the U.S. While we don’t know the extent to which the Coronavirus will take hold in the U.S., employers should start planning now so they can protect the safety of their workforces and maintain normal business operations, to the extent possible, should the Coronavirus have a significant impact.
In doing so, employers face potentially conflicting laws that should be taken into account in determining how to move forward. For example, under the Occupational Safety and Health Act (OSHA) and similar state laws, employers have a general duty and obligation to provide a safe and healthy work environment and must not place their employees in situations that are likely to cause serious physical harm or death. On the other hand, overreacting or implementing overbroad bans or quarantines that aren’t based on reasonable or reliable facts or information could violate laws that prohibit discrimination (based upon disability, national origin, or other protected characteristics).
Employers should contact counsel with any questions as they navigate putting together their Coronavirus (or general infectious disease prevention) plans and policies, or dealing with employee-specific issues that may arise.
What Are the Primary Symptoms of the Coronavirus?
Affected individuals have reported mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In severe cases, the virus has led to pneumonia and kidney failure, and, in some cases, death. The CDC believes that symptoms may appear within two to fourteen days after exposure.
How Can Spread of the Coronavirus Be Prevented?
The CDC recommends standard precautions to avoid the spread of respiratory viruses, such as washing hands with soap and water for at least 20 seconds; avoiding close contact with people who are sick; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.
Should Employees Travel for Business to Areas Impacted by the Coronavirus?
Requiring employees to engage in business travel to areas with a heightened risk of contagion could create risk under OSHA’s General Duty Clause, which 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.” Employers whose business may involve travel to areas that are subject to travel restrictions or experiencing an increase in the spread of the Coronavirus should consider all other potential options (e.g., teleconferencing).
While employers generally have broad discretion to decide the duties and requirements of a job and to discipline employees who fail to fulfill those requirements, if an employee expresses concern regarding travel to impacted areas, employers should consider offering reasonable alternatives. Employers whose employees do travel to areas affected by the Coronavirus should provide safety information regarding the virus, how to avoid exposure, and who to contact in case of impact during travel (e.g., local health departments, the U.S. consulate or embassy).
What if an Employee Plans to Travel for Non-Work-Related Reasons to Areas Impacted by the Coronavirus?
Employers may require that any employee who chooses to travel for personal reasons to areas impacted by the Coronavirus notify a designated company official and let the official know of their plans.
What Should I Do if an Employee Has Recently Traveled to an Area Impacted by the Coronavirus or Otherwise May Have Been Exposed to It?
The Americans with Disabilities Act (“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.
Whether an illness rises to the level of a “direct threat” depends on its severity. The U.S. Supreme Court previously has set forth a number of fact intensive inquiries that an employer should consider in order to make such a determination: “(1) the nature of the risk of the disease; i.e., how it is transmitted; (2) the duration of the risk; i.e., how long is the carrier infectious; (3) the severity of the risk; i.e., what is the potential harm to others; and (4) the probability that the disease will be transmitted to others.”
Employers should look to up-to-date information from health authorities (e.g., the CDC) in order to determine whether an employee who potentially has been exposed to the Coronavirus may constitute a “direct threat.” Employers may ask about whether an employee has traveled to an affected area or about potential exposure to the Coronavirus. This would not constitute a disability-related inquiry; however, employers should ask this of all employees known or believed to have recently traveled to a particular area, not just to employees of certain races, ethnicities, or national origins. Employers should keep all medical-information received from employees confidential. The CDC specifically advises that “if an employee is confirmed to have the [virus], employers should inform fellow employees of their possible exposure” to the virus in the workplace but should “maintain confidentiality as required by the ADA”.
Employers may require an employee who is returning from travel to areas impacted by the Coronavirus and (1) has had possible contact with an affected person and/or (2) has Coronavirus symptoms, to stay home (or work from home) until medically cleared to return to work. Generally, this would be for a period of up to fourteen days. However (and somewhat disconcertingly), the CDC advises that employers should “not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.” Presumably, the dispensing of such medical clearance notes would be advisable only if the outbreak is at a level of severity where such documentation is no longer feasible.
What Should I Do If an Employee Exhibits Symptoms of a Potentially Contagious Disease?
According to the Equal Employment Opportunity Commission (“EEOC”), sending home an employee who displays symptoms of a contagious illness does not violate the ADA because: (1) if the illness ultimately turns out to be relatively mild or routine (e.g., seasonal flu), it would not have constituted a covered disability in the first place; and (2) if the illness does turn out to be severe (so that it could constitute a disability under the ADA), then it would likely pose a “direct threat” supporting the employer’s decision. An Employer should consider clearly communicating that it has the right to send home any employee exhibiting symptoms of a potentially contagious disease.
Do I Need to Pay an Employee Who Takes Time Off Work Because of a Contagious Disease (Whether Due to Infection or Quarantine)?
The short answer to this somewhat complicated question is that an employer should ensure that an employee is compensated for time spent in quarantine (or time off for illness) if such is due to the employer’s direction that the employee travel. (An employer may also have a separate legal obligation to pay employees who go on an employer-mandated quarantine leave, pursuant to the terms of an employment contract or collective bargaining agreement). However, without such an agreement or an express requirement than the employee travel, and where the employee is infected or quarantined due to reasons unrelated to work, non-exempt employees are not guaranteed wages or hours, and an employer is therefore not required to compensate employees if they are sent home. The same is true for exempt employees if they are sent home for an entire workweek; however, if exempt workers work for a portion of the workweek they generally must be compensated for that entire week.
An employer might still decide to pay infected or quarantined employees to remain at home during the full 14-day incubation period, though, despite no legal obligation to do so. In an effort to ensure that employees who don’t want to stay at home without pay for two weeks or use their paid time off and/or paid sick leave (if applicable) aren’t motivated to conceal a possible infection, employers should strongly consider compensating an employee. Practically speaking, if sick employees continue to come into work simply to conserve paid time off and/or because they are unable or unwilling to forgo compensation, the employer’s efforts to take all reasonable steps to prevent the spread of illness throughout the workplace will be for naught.
It is also worth noting that an employee who experiences a serious health condition or who needs time off to care for a family member experiencing a serious health condition may be entitled to take unpaid leave under the Family and Medical Leave Act (FMLA) or comparable state laws. An employer can also provide an employee with leave as a reasonable accommodation under the ADA. This leave can be paid or unpaid. Employees generally are not entitled to take FMLA or reasonable accommodation leave to stay at home to avoid becoming sick though. California employees (and employees in several other states and/or cities) are also entitled to use accrued paid sick leave.
What Else Can Employers Do?
Employers should make sure that work environments are as clean as possible to prevent the spread of contagious diseases. They should also make clear that employees who have symptoms of a potential contagious illness must not report to work while they are sick. Employers should also check the CDC website regularly for Coronavirus updates and should have open and informed conversations with concerned employees about the virus and its potential impact.
What Official Guidance is Available for Employers from the Government?
The CDC has also developed information and guidance for employers, available here. The document, entitled “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019” contains many helpful suggestions and recommended strategies for employers and businesses, and all employers should review the guidance and consider whether its advice and suggestions are appropriate for their workplace. Employers should also regularly check the CDC’s website for updates to the guidance as well as other related developments.
