There has been much media attention to the coronavirus outbreak in China and its spread to other countries. At this point, there are only a few confirmed cases in the U.S., but that can be expected to rise. People are beginning to worry about exposure to the virus, including in the workplace. The question of interest to employers is what can they do with regard to protecting the workplace from coronavirus.
There is no one size fits all answer. The right choice will depend on the type of workplace, the job the employee performs, and the employer’s tolerance for legal risks (to name a few of the considerations an employer would take into account).
What is Coronavirus and How Does it Spread? The current outbreak is 2019 Novel Coronavirus (2019-nCoV), which is a new respiratory disease in the coronavirus family, with the source currently unknown. Past coronavirus outbreaks include SARS, which came from civet cats, and MERS, which originated from camels.
Although not confirmed, it is thought that 2019-nCoV can spread person-to-person, likely through exposure to respiratory droplets from coughing and sneezing. SARS and MERS generally occurred between close contacts.
The symptoms of 2019-nCoV can include fever, cough, and shortness of breath. It is thought that the incubation period ranges from 2-14 days after exposure.
Current State in the U.S. In the U.S., the Center for Disease Control is simply monitoring the situation, asserting that the immediate health risk is “low at this time.” Nonetheless, the CDC predicts, “Given what has occurred previously with MERS and SARS, it’s likely that person-to-person spread will occur, including in the United States.” The CDC has issued a Level 3 Travel Health Warning, recommending that U.S. citizens avoid all non-essential travel to China, and a Level 4 warning to avoid Hubei province, the center of the outbreak. The CDC will continue to post information on its 2019-nCoV webpage.
Employer Actions. If 2019-nCoV becomes widespread in the U.S., employers will need to develop plans to protect the workplace. Under the Occupational Safety and Health Act’s General Duty clause, employers are required to provide a safe and healthy working environment.
The following suggestions are based on the CDC’s prior guidance for SARS and MERS, along with other prior guidance from the Department of Homeland Security:
Employee Education. Just as with past outbreaks, there will likely be some misunderstanding of how 2019-nCoV is transmitted, and where the outbreaks are occurring. Employees should be educated as to the facts, which should calm some of the fears in the workplace.
Prevent Infection in the Workplace. Employees should be trained or reminded to take preventive steps in the workplace to avoid spreading 2019-nCoV as well as other infections, like the flu or a cold. These steps include:
- Washing hands frequently with soap and water for at least 20 seconds at a time.
- Using an alcohol-based hand sanitizer in areas without soap and water.
- Covering the mouth and nose with a tissue or sleeve (not hands) when coughing or sneezing.
- Seek medical treatment immediately if symptoms appear following travel or other exposure to 2019-nCoV. The CDC suggests calling ahead to the medical center or doctor’s office before arriving, to allow them to prepare to minimize contact with other patients.
Business Travel. Certainly, employers should continue to monitor the CDC’s travel advisories. In addition, employers may wish to avoid requiring business travel to outbreak areas.
Conversely, if travel to outbreak areas is required but an employee expresses concern about such travel, the employer should consider requests to avoid such travel thoughtfully and agree to reasonable requests. In particular, older employees, those employees with compromised immune systems, and pregnant employees should be accommodated.
A request to avoid all travel, including to non-outbreak areas, would likely not be considered reasonable, however.
Incubation Period Leave. A blanket policy of requiring all employees traveling to the areas of outbreak to remain out of work for the incubation period following their return to the U.S., either with or without pay, and to obtain a medical examination releasing them to return to work at the end of the period would likely be deemed unnecessary, at least with regard to those who were not exposed to 2019-nCoV.
On the other hand, it may be appropriate for workplaces such as hospitals and nursing homes, where the nature of the work and risk of harm to the populations served requires a more stringent standard. Employers that choose this rule should be able to justify the business necessity of adopting it. In addition, placing the employee on paid leave will minimize the risk of liability that might be found under federal anti-discrimination laws.
Combined Leave and Return to Work. A more nuanced approach is to require employees who have been exposed to 2019-nCoV to remain out of work for the incubation period, either with or without pay, but to permit employees not known to have been exposed to the virus in their travels to an area of outbreak, to return to work, subject to self-monitoring. Obviously this contemplates that the employee would know whether he/she was exposed and would provide an honest and educated answer. Depending upon the circumstances, employers may further choose to require such employees to report on self-monitoring, or check the temperatures of the employees during the incubation period.
Another approach, in keeping with past CDC guidelines, is to require employees who have been exposed to 2019-nCoV to be assessed by their doctor, in consultation with public health authorities, in order to determine their risk level and what actions are appropriate. Whether the employee would be permitted to return to work, with self-monitoring, would depend on the doctor’s assessment. Employees not exposed to 2019-nCoV would be permitted to return to work with self-monitoring, as set forth in the previous option.
Telecommuting. If an employee is required to remain home for the incubation period, telecommuting may or may not be an option, depending on the type of work performed by the employee. If the employee has not previously telecommuted, there may be logistical issues, such as equipment, confidentiality, access to documents and materials, tracking of time worked, etc. Employers should also keep in mind whether this may set a precedent for other situations.
Family Members. In addition, employers can require employee to report on whether household members have traveled to such areas, and whether they exhibit any signs of infection. If there are such indications, then the employee can be required to self-monitor or to remain out of work for the incubation period.
Confidentiality. Any information received from employees with regard to 2019-nCoV exposure, symptoms, and medical examinations should be treated as a confidential medical record (meaning that it is kept in a secure file separate from the employee’s personnel file). It is not appropriate for the employer to discuss the individual employee’s exposure, symptoms or results of medical examinations with the co-workers, or even managers who do not have a business need to know. Employers may and should communicate that they have implemented 2019-nCoV policies and that the policies are being followed with regard to all employees to ensure a safe workplace.
Review and Remind Employees About Sick Leave Policies. Given the increasing proliferation of sick leave laws at the state and local level, employers should ensure that their sick leave policies are compliant with any applicable law. In addition, employees should be kept informed of such policies and any employee assistance policies. In addition, employers may wish to identify a company representative to assist employees who become ill. And employers may require employees who have contracted 2019-nCoV (and other infectious illnesses) to be cleared by a doctor before returning to work.
Consult with Your Attorney. In developing a written policy or protocol, we suggest that you consult with counsel to ensure that, before the proposed policy/protocol is implemented, legal risks have been identified and assessed, and that the policy/protocol is appropriate for your specific workplace. In addition, what the policy/protocol actually contains may need to be modified as the 2019-nCoV situation further develops.