The Centers for Disease Control and Prevention have labeled COVID-19 (Coronavirus) as a public health emergency. With anxiety surging following the pervasive coverage of the spread of the Coronavirus, employers must prepare to address the concerns of their workers.
By the Numbers
As of the time of this writing, the number of confirmed cases of the Coronavirus has grown globally to near 105,000, with over 164 infected in the United States. The reproductive rate, or “R naught” of the virus, is estimated at 2.28, meaning that for every single infected person, 2.28 secondary cases could occur, with a mortality rate of approximately 2.3%. According to the CDC, the primary transmission of the Coronavirus appears to be by respiratory means, with symptoms occurring 2-14 days after exposure. Of note, the CDC reports a low health risk for Americans, with the disease not currently spreading amongst the U.S. population.
An Employer’s Duty of Care
The Occupational Safety and Health Act of 1970 was passed to help ensure safe and healthful working conditions for American workers. The Act’s “General Duty Clause” requires that employers 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 [its] employees.”
Since the transmission of the Coronavirus generally occurs via respiratory means from close personal contact with others, employers in the U.S. have a duty to devise and implement a plan that keeps their workers safe from the disease.
From the Experts
The CDC encourages employers to shore up their business continuity plans in the event of a possible Coronavirus outbreak in the U.S. As the duration and severity of the Coronavirus event is undetermined, employers should make short and long-term plans of action.
The short-term strategy includes:
- Urging sick workers to stay at home
- Sending workers with respiratory illnesses home
- Reiterating good coughing and sneezing etiquette and handwashing
- Routinely disinfecting surfaces
The long-term strategy includes:
- Establishing an infectious disease outbreak response plan
- Readying your company’s infrastructure for remote workers
- Addressing the impact of supply chain interruptions
- Preparing for absenteeism in the workplace
As employers ready their Coronavirus response plans, there are several legal concerns that an organization must weigh. While employers have a duty to provide their workers with a safe and healthful workplace, they must do so in a way that does not create broad policies that invite discriminatory practices or are otherwise unlawful.
Employers should ban all work-related travel to China immediately to avoid an OSHA claim. The U.S. State Department has issued a “Level 4: Do Not Travel” advisory, but has not implemented outright travel restrictions. Nonetheless, most commercial air carriers have reduced or suspended service to and from China. Business travel to areas impacted by widespread outbreaks of the Coronavirus should also be curtailed unless necessary.
Employers should not dismiss a worker’s concern about work-related travel in general as a result of the Coronavirus. Employers are encouraged to have a factual discussion concerning the risks of travel. Requests from workers who do not want to travel because of legitimate health or medical circumstances should be reasonably accommodated per the Americans with Disabilities Act, and relevant state and local laws.
The desire of workers who do not require accommodation and who do not want to travel out of fear of becoming infected with the Coronavirus should be weighed against the business’s need to maintain its operations. Most employment relationships in the U.S. are “at-will”, which means that an employer can terminate an employee at any time, and for any reason that does not infringe upon that employee’s rights, is not discriminatory, or otherwise illegal. Therefore, if an “at-will” worker declines to perform the job functions for which they were hired, an employer may legitimately discipline or terminate that employee. Similarly, workers subject to an employment contract who refuse to travel may be in breach of that contract and subject to discipline or termination if they are unwilling to perform as required by their agreement with the employer.
In the event of a pandemic, the Equal Employment Opportunity Commission (EEOC) permits employers to mandate that individuals who exhibit flu-like symptoms stay home. The Coronavirus is neither a pandemic nor widespread in the U.S., and as such, employers must act reasonably when recommending that symptomatic and specific asymptomatic workers stay home.
The U.S. State Department has issued a 14-day quarantine mandate for any U.S. citizen who has been in the Hubei province of China within the previous 14 days. Therefore, employers should be prepared to accommodate workers who may be subject to this quarantine requirement. U.S. citizens returning to the United States who have traveled elsewhere in mainland China within the previous 14 days may undergo health screening and are subject to a self-quarantine. Employers should encourage that these individuals adhere to the self-quarantine recommendation. Out of an abundance of caution, employers may also consider requesting that workers who have not traveled to China but are experiencing a respiratory illness stay home.
In all cases, employers should consider being flexible with sick-time, accrued time off, or other out of office policies, allow workers to use any type of leave available, and prepare for reasonable work remote requests.
As a result of the Coronavirus employers across the world are limiting in-person engagements and preparing for large-scale deployment of a remote workforce. Because of the unique nature of the Coronavirus emergency, employers may consider establishing a remote work policy specific to this event.
When developing a Coronavirus telework policy, employers should note that the policy is explicitly implemented to mitigate the risk of Coronavirus contagion. The basis of the policy should specifically be rooted in the CDC’s 14-day quarantine mandate for infected or suspected infected individuals, or other individuals requiring legitimate accommodation under the ADA. Therefore, different situations may not arise to a similar need to present telework opportunities or accommodations in the future.
Just because remote workers may be out of sight, they should not be out of mind. Risk-averse employers or those assessing a long-term work remote strategy may consider implementing solutions that provide ongoing monitoring of their workforce. Being alerted if a worker is arrested can be helpful for employers in regulated industries. Other employers may want to monitor their workforce for newly filed criminal charges. Through monitoring, employers can help to mitigate risk to their organization from insider threats even if their workers are offsite.
Employers and workers alike should not panic as a result of the Coronavirus. With hype spreading faster than the virus itself, employers are encouraged to adhere to the CDC’s guidance and develop a Coronavirus response strategy that is rooted in the law and, most importantly, based in common sense.