The recent outbreak of the Coronavirus in Wuhan, China, which has spread to the United States with new cases being reported every day, has the global community on high alert. The Coronavirus is an upper-respiratory disease similar to Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS), which as of this writing has infected at least 2,800 people in China and killed more than 80. China has recently taken the extraordinary step of quarantining tens of millions within certain regions, which is all the more remarkable given that it coincides with the Lunar New Year, the most heavily traveled period in China. The spread of the virus has now been reported in other countries around the world, including in France, Japan, Canada and Australia. In the United States, the CDC has confirmed five cases and is investigating 110 people in 26 states. The United States is one of many countries moving forward with a plan to evacuate its citizens from Wuhan.
While employers would be wise to leave the containment and treatment of the virus to medical experts, disease outbreaks present a unique set of employment law issues for many businesses, especially for those that require international travel as an essential job function for their employees. This post addresses some of the employment issues raised by the Coronavirus outbreak. (Note: we recognize events on the ground are fluid, and therefore will update this post as necessary.)
Best Practices for Employers in Response to Virus Outbreak
- Communication and Education: Employers impacted by the virus outbreak will want to inform employees that management is apprised of, and carefully monitoring the outbreak, particularly as it relates to company travel to and from an infected region. Providing education and information on the virus itself should be brief, and reiterate only what official sources have issued. In educating employees on this topic, “less is more” in many ways. Employers are generally not experts on the Coronavirus or other viruses, and will want to avoid opining on the effects or contraction of a disease. However, employers may connect employees with appropriate government agencies, health organizations, and other resources to learn more about a virus. For example, the CDC’s website often includes up-to-date information regarding the spread of a disease, risk assessment and guidance for travelers. An employer’s goal at this stage is to instill confidence in employees that it is continuing to monitor a virus outbreak, and will proceed with the employees’ best interests in mind, including taking proactive steps as necessary.
- Reinforce Sick Leave Policies: During cold and flu season in general, employers should encourage employees to review company sick leave and paid time off policies (not just those who are required to travel), and remind employees to stay home if they are feeling ill, and of other basic steps they can take to guard against illness (i.e., avoiding contact with those they know to be ill; washing their hands, etc.). If employees have questions about sick leave use or accrual, employers should identify a point person to answer specific employee questions. In general, employers should consider training managers and supervisors to send employees home if they are sick.
- Consider a Temporary Travel Opt-Out Policy: The Chinese government has already quarantined certain segments of its population, and 20 U.S. airports are screening individuals traveling from Wuhan into the U.S. But employers must consider whether to implement their own travel policies in the face of a spreading virus. Under the Occupational Safety and Health Act, employees may refuse to work when there is a reasonable belief that there is risk of imminent death or serious injury. To preempt concerns or refusals to travel, employers should consider temporarily suspending travel directly to an infected region. In offering such a policy, employers must administer the policy in a way that does not implicate anti-discrimination laws. For example, employers cannot require pregnant or disabled employees to opt out of travel, while requiring other employees to continue traveling to a region. Note that this is a delicate balance, given that the Americans with Disabilities Act (ADA) and state-specific pregnancy rights laws may mandate that companies consider restructuring a job to exclude travel to this region for employees that request reasonable accommodations. Further, employers may consider requiring employees traveling to or from the infected regions (or who have been in contact with those who have traveled to or from the infected regions) to refrain from reporting into work. Many employers are requiring such employees to work remotely at least through the suspected incubation and transmission period.
What Should Employers Avoid Doing?
- Offering Medical Opinions and Misinformation: It’s important for managers and HR personnel to provide accurate, uniform information about the outbreak of a disease if and when questions are presented, and avoid providing medical opinions about the effects and spreading of the disease. Appropriate communication from company management should reflect the guidelines offered by the CDC and other official sources, in order to undercut any cycle of misinformation, and instill confidence in employees that they can continue to perform their job duties without fear of infection.
- Employee Medical Examinations and Quarantines: The ADA prohibits mandatory medical examinations unless an employer has a reasonable belief that an employee’s medical condition poses a “direct threat” to the workplace i.e., there is a business necessity to do so. Employers that isolate or quarantine employees when public health agencies have not yet done so risk liability under the ADA, medical privacy laws, state wage and hour laws and potential national origin discrimination claims. The U.S. has directed all travelers coming from Wuhan to undergo health screening, but those not exhibiting signs of illness have not been quarantined. Employers should avoid taking drastic measures and leave the quarantining to the medical professionals. However, as mentioned above, employers may consider remote working policies as an effective measure if warranted.
- Do not prevent certain employees from traveling over others: As addressed in our discussion of travel opt-out policies, employers must enforce any policies put in place uniformly. That means an employer cannot prevent certain employees, like pregnant or disabled employees, from traveling while requiring other employees to continue traveling to the region. At the same time, employers should engage in an interactive process when these employees request reasonable accommodations to exclude them from travel to certain regions.
As the global community continues to monitor the Coronavirus outbreak, employers should maintain open communication with its employee population, reinforce sick leave and paid time off policies as needed, and consider appropriate travel policies.