Coronavirus: key employment legal issues for US employers (United States)
The number of reported cases of the novel coronavirus (2019-nCoV) continues to rise – at this writing, topping 40,000 infected with more than 900 deaths – and the world is on high alert.
The World Health Organization (the WHO) has declared the outbreak a public health emergency of international concern and, to date, 2019-nCoV has been detected in more than 25 countries with 12 cases confirmed in the United States. The US State Department has upgraded its travel advisory for China to Level 4: Do Not Travel, and the Center for Disease Control and Prevention (CDC) has bumped its own travel advisory for China to Warning Level 3, recommending that travelers avoid all nonessential travel to China.
What is coronavirus? According to the WHO, coronavirus usually causes respiratory illness. Common signs of infection include respiratory symptoms, fever, cough, shortness of breath and breathing difficulties. In more severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death. The WHO recommends a number of precautions to prevent the spread of coronavirus, including regular hand washing, covering the mouth and nose when coughing and sneezing, and thoroughly cooking meat and eggs. The WHO also suggests that people avoid close contact with anyone showing symptoms of respiratory illness, such as coughing and sneezing.
Why should employers take action? Under the federal Occupational Safety and Health Act of 1970 and applicable state and local laws, employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Given the ongoing outbreak, and an evolving understanding of 2019-nCoV, including its transmission and incubation, it is important for employers to consider what preventative measures they can take to maintain safety and protect their employees from potentially contracting coronavirus as well.
What can employers do when employees wish to travel to China? Employers may want to restrict employees from traveling to China unless necessary, as advised by the State Department and the CDC. While the Chinese government has placed the city of Wuhan, and other high-risk cities, under lockdown, and international travel to China has been reduced by commercial air carriers, the virus still continues to spread. If employees must travel, they should follow basic infection control precautions by engaging in careful hygiene with soap and water and hand sanitizer; avoid contact with sick people; avoid contact with animals and uncooked animal products; and wear personal protective equipment (PPE).
What about employees traveling from China to the US? Based upon new travel restrictions, Americans travelling to the US who have been to the Hubei province in China in the last 14 days may be subject to up to 14 days mandatory quarantine. US citizens who have been to other parts of Mainland China in the past 14 days are subject to screening at designated airports and are subject to 2 weeks of monitored self-quarantine. Foreign nationals who were recently in China are currently being denied entry into the US.
As a result, employers must put in place protocols for: (1) employees who have traveled to the Hubei province and are subject to the mandatory quarantine and are not permitted to return to the workplace; (2) asymptomatic employees who have traveled to mainland China and are under monitored self-quarantine; and (3) employees who have traveled to China (or have had contact with someone who recently has) and demonstrate symptoms consistent with a cold.
For those in the first two groups, employers should encourage employees to adhere to the quarantine restrictions and either work remotely or take time off work. As to their work status, if an employee does not have adequate sick time or vacation time, employers should consider providing leave to a potential incubating employee consistent with its leave policies, including allowing employees to use all forms of available paid leave. As to the third group, employees with symptoms should be encouraged to visit a medical office and stay home away from others for 14 days. Employers should again consider offering the opportunity to work remotely or offer a leave of absence to symptomatic employees consistent with its leave policies. The common theme here is that employers (and non-incubating employees) are better off safe than sorry.
Employers should be aware that by encouraging remote work, employers may later face resistance to future limitations to do so (for example, as a request for a reasonable accommodation). Employees (even those not impacted by the instant travel to China) may argue that it is not reasonable to limit remote work given the employer’s encouragement to do so at one point in time. For example, some businesses limit employees’ ability to work from home because they require employees to interface personally with customers or clients, and they would not want to set precedent that makes it more difficult to deny other requests in the future without being accused of violating the Americans with Disabilities Act (ADA) or similar state or local law. Accordingly, such employers would be well served to document the unique circumstances leading to the remote work due to risk of coronavirus that may or may not be applicable to other health conditions.
Can employers require medical examinations for employees who have visited China recently? Employers likely cannot require employees who have visited Wuhan, China, or China generally, to undergo a medical examination upon their return, especially if they are asymptomatic. The ADA prohibits employers from requiring medical examinations unless they are job-related and consistent with business necessity, such as if the employee will pose a direct threat due to a medical condition. A direct threat is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Given the precautions currently being taken upon reentry to the US, it is unlikely that an asymptomatic employee may be considered a direct threat. ADA-covered employers may not require asymptomatic employees to undergo medical examinations unless the coronavirus reaches pandemic status more severe than the H1N1 virus of 2009. However, if an employee returning from Wuhan, China, or China generally, demonstrates symptoms, this presents a very different situation, as it may present a direct threat to the health of coworkers and him or herself.
What about employees who express concerns about travel outside of the US (even outside of China)?
If an employee notifies the employer of an underlying health condition or other sensitive reason impacting their desire to travel (eg, pregnant workers, mental health-related fear of flying), the employer needs to consider a reasonable accommodation consistent with the way the employer handles similar requests to avoid running afoul of the ADA, state or local law. This potential concern from an employee needs to be weighed against any non-medically verified fears of contracting the coronavirus during any travel so that employers can continue to operate the business and keep employees employed.
How do employers address key employees working on critical business projects who refuse to travel to China (or other international destinations)? This becomes a risk analysis for each company, dependent on the factual circumstances and options available. If the employee refuses to perform the functions set forth in the job description or employment agreement, those present legitimate grounds for discipline, up to and including termination. For any workers who are working for employers under an employment contract in place (as opposed to at-will) that requires travel, if the employee refuses to carry out the terms of the contract, the employee would technically be in breach of the contract and the employer may be able to argue that that the employee’s refusal is tantamount to a breach of the implied covenant of good faith and fair dealing. This would provide an additional legitimate basis for any disciplinary actions.
However, if employees inform the employer that they do not want to travel for fear of contracting a disease like coronavirus (at a time when the WHO has characterized it as a “Level 4 - Do Not Travel”), these employees could argue under Occupational Safety and Health Administration guidelines (or the relevant state law equivalent) that in the face of any adverse employment action for refusing to travel, they are being subjected to disciplinary action for opposing unsafe working conditions. In addition, a company may even face allegations that it has negligently exposed its employees to a communicable disease - as has recently been asserted against an aviation company, when a union filed a petition on behalf of its employees for injunctive relief.
While employers generally have broad discretion to decide the job requirements of employees, employers should balance operational business needs with any reasonable concerns raised by their employees, and should consider reasonable alternatives to accomplish their business objectives.
How can employers limit the outbreak’s spread in the US? While this has not become a pandemic, the EEOC has previously stated that during a pandemic, employers may require employees to wear PPE, such as a face mask. If that time comes, employers will need to be aware of the need to accommodate employees with disabilities who require specific types of PPE (eg, non-latex gloves). Unfortunately for companies in the US and elsewhere, the very measures that are designed to protect workers may result in a slowdown of the speed at which employees can work. Employers and employees would undoubtedly face a slowdown at work simply by requiring employees to change in and out of protective wear and keep a high level of personal hygiene to ensure no cross-contamination. Employers will also need to be aware of wage-and-hour issues that may be triggered by the changing in/out of PPE.
It is imperative that employers stay updated with developments regarding coronavirus and its status in the US. In the event of a pandemic, employers should engage employees in a discussion regarding: (1) the responsibility of management to remove sick people from the workplace or to provide adequate systems of isolation; (2) the appropriate PPE gear to provide workers; (3) whether management will provide protection, such as immunization against the coronavirus, when available; (4) creating worker committees to discuss workplace safety concerns, including potentially sensitive personnel (eg, pregnant workers, breastfeeding workers, elderly workers, workers requesting compassionate leave after bereavement).
What can employers do now? Employers should evaluate workplace emergency response protocols and consider what, if any, modifications are necessary to address a potential coronavirus pandemic. Protocols should include contact information for employer representatives who can provide additional information to workers about how the coronavirus may impact their safety in the workplace. Most importantly, prudent employers should keep themselves informed of news updates. Check the CDC website regularly for updates, and keep an open dialogue with all levels of employees about their concerns about coronavirus, without creating hysteria; remain informed about whether any employees become symptomatic, while keeping the workplace as safe and clean as possible in order to limit any potential spread of the coronavirus. Finally, consistent with the above recommendations in case of a pandemic, employers should be deliberate in creating strategies for continuing business operations if the outbreak turns into a pandemic.
Learn more about the implications of this outbreak by contacting any of the authors or any member of DLA Piper’s Employment team.