U.S. Company Obligations in Light of the Coronavirus Outbreak
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The World Health Organization (WHO) has designated the rapid international spread of the deadly coronavirus, 2019-nCoV, (the “Coronavirus”) a global health emergency. The virus, which can cause respiratory symptoms such as coughing, shortness of breath and breathing difficulties, started in Wuhan, China, and can be life-threatening. The United States similarly recently declared a public health emergency, and companies employing U.S. employees should be aware of new legal obligations triggered by the Coronavirus epidemic.
1. The Workplace.
The U.S. Occupational Safety and Health Administration (OSHA) imposes a legal obligation on companies to ensure a safe workplace for all workers. In light of the Coronavirus outbreak, OSHA has published guidelines for employers to follow in the workplace, in the event that an employer has reason to believe its employees are at risk for contracting the virus. Based on protective measures issued by the WHO, as well as directives publicized by the Centers for Disease Control and Prevention (CDC), the OSHA guidelines focus primarily on maintaining as germ-free a work environment as possible. Given the current OSHA guidelines, employers who have reason to believe their employees may be at risk for contracting the Coronavirus should take steps to make sure that all restrooms and washing stations have liquid soap and disposable paper towels, consider placing alcohol gel dispensers in various office locations, and keep tissues well-stocked. Employees should be monitored for signs of illness, and anyone exhibiting respiratory symptoms, fever, cough, shortness of breath, or breathing difficulties, should be encouraged to seek medical attention, and may be required to provide medical authorization as a condition of returning to the company’s premises.
Companies should regularly monitor OSHA guidelines, WHO advisories and CDC directives for updates that may affect employer obligations to maintain a safe workplace for employees. Employers who fail to abide by OSHA guidelines may be subject to monetary fines and penalties.
2. Infected and/or Exposed Employees.
In light of an employer’s responsibility under OSHA to ensure a safe workplace, as well as current CDC directives, employees who are actively infected with the Coronavirus should clearly be restricted from all work premises, as well as from any physical interaction with company employees and/or business partners. Employees who refuse to work in the presence of an infected individual are protected by law, and it is illegal to retaliate against such employees in any manner.
Company sick leave and other paid time off policies should be reviewed for purposes of giving an infected employee as much paid time off as possible. Depending on the employee’s circumstances, federal, state and/or local law may require the company to provide a certain amount of paid or unpaid time off, and/or to hold the employee’s job for a certain period of time. Moreover, some employees may be entitled to take paid or unpaid time off to take care of a relative infected with the Coronavirus. An employee who becomes disabled on account of the effects of the Coronavirus may be entitled to reasonable accommodation on the part of the employer when the employee is no longer contagious and ready to return to work.
A bit less straightforward is how to handle an employee who has been exposed to the Coronavirus, but is not actively displaying symptoms of the virus. The CDC has issued comprehensive standards for purposes of assessing the risk posed by such an individual, including recommended steps for isolating the individual, depending on the circumstances. Companies should keep up-to-date and comply with all such CDC standards as they evolve in this respect, as there is currently no clear consensus as to the point at which an individual exposed to the Coronavirus actually becomes contagious. In general, employees considered at-risk for developing the Coronavirus can be required to work from home (if compatible with the employee’s position and job duties), and companies should consider modifying their work-from-home policies until the Coronavirus epidemic passes.
Whether an employee has been diagnosed with the Coronavirus, or considered to be at-risk for contracting the virus, employers should be careful about the extent to which such information is shared and/or announced to third parties. Although employers are obligated to officially report the existence of an infected individual to OSHA, information regarding an employee’s health status may be subject to federal and/or state regulations governing protected health information (PHI), and companies should therefore proceed cautiously with respect to the dissemination of such information. Moreover, sharing suspicions that an employee is infected with the Coronavirus, when the employee is in fact not infected, could subject an employer to libel and/or defamation claims.
3. Employee Travel.
In addition to taking steps to make an employee’s physical workspace safe, employers should be sure to follow and abide by CDC travel advisories, which may affect employee travel to certain geographical locations. As of Feb. 2, 2020, the U.S. has issued a travel advisory warning against all travel to China. In addition, strict restrictions are being imposed on individuals entering the U.S. from areas considered to be high-risk for the presence of the Coronavirus, and such individuals may be subject to medical screening and quarantine.
During any period of travel restrictions, employees should be encouraged to use video-conferencing, Skype and other technological tools available in lieu of actual “face to face” meetings.
4. Insurance Coverage.
Companies should review their workers compensation insurance policies to make sure that in the event an employee does actually contract the Coronavirus in a work-related context, such as via an infected co-worker, business partner, or travel to a high-risk area for business reasons, such insurance will cover (or at least contribute towards) compensation lost on account of time taken off from work, related medical expenses and ensuing rehabilitative therapy. Most workers compensation policies are designed to address scenarios in which an employee falls and becomes injured in the workplace, rather than an employee who contracts a contagious disease. Purchasing supplemental coverage may be appropriate, depending on the circumstances. In general, any policy covering an employee who contracts the Coronavirus will require clear medical documentation that the virus was contracted in a work-related context. Note that an employee sent for purposes of business-related travel to an area designated by the CDC as a no-travel zone may not be covered by the company’s insurance policy, and the company could be subject to separate legal claims by the employee due to the company’s negligence and/or recklessness in sending the employee to such a region.
An employee who contracts the Coronavirus under circumstances not related to work may be covered by state-provided disability insurance (in some, but not all U.S. states) and/or a company’s private disability insurance. These policies can be reviewed for purposes of determining employee eligibility for coverage, as well.
Companies with U.S. employees should be aware of their obligations and duties triggered by the Coronavirus outbreak, and should be attentive to any updates issued by OSHA, WHO, and CDC which may in turn cause new and/or enhanced obligations on the part of employers.