Executive Summary: With the worldwide cases of coronavirus tripling in the past week, and the eleventh case confirmed in the United States, U.S. employers are examining what necessary precautions should be taken to control and prevent the spread of the virus. Perhaps the most important step for employers right now is to become educated and stay informed.
Coronavirus – Symptoms and Transmission
The 2019 Novel Coronavirus, or 2019-nCoV, is a new respiratory virus first identified in Wuhan, Hubei Province, China.
Current symptoms reported for patients with 2019-nCoV have included mild to severe respiratory illness with fever, cough, and shortness of breath. The CDC believes that symptoms of 2019-nCoV may appear in as few as two days or as long as 14 after exposure.
There currently is no vaccine to prevent 2019-nCoV infection. The best way to prevent infection is to avoid being exposed to this virus. However, as a reminder, CDC always recommends everyday preventive actions to help prevent the spread of respiratory viruses. https://www.cdc.gov/coronavirus/2019-ncov/about/prevention-treatment.html. For more information, see the Centers for Disease Control and Prevention (CDC) website: https://www.cdc.gov/coronavirus/about/index.html.
Currently, there is a very low risk that workers in the U.S. will encounter the coronavirus or individuals infected with the virus.
The Occupational Safety & Health Administration, however, has identified certain industries in which workers are at a greater risk for infection:
- Healthcare workers;
- Airline and other travel industry personnel;
- Laboratory workers;
- Border, customs and quarantine workers; and
- Waste management workers.
Employers in these industries will need to immediately review their infectious disease protocols and ensure that such protocols are up to date and are disseminated to all workers.
The Occupational Safety and Health Administration has published extensive guidelines addressing each of these at-risk industries, which can be found at: https://www.osha.gov/SLTC/novel_coronavirus/.
For all other workplaces, the main concern would be individuals returning from travel to China. The U.S. Department of State has issued a Level 4 Travel Advisory asking individuals not to travel to China due to the coronavirus outbreak. As such, employers may want to consider limiting travel to the affected areas, or at the very least ensuring that business travelers are fully educated on methods of transmission, prevention, and symptoms of coronavirus.
Rights and Responsibilities of Workers and Employers
First and foremost, employers and workers must communicate and cooperate with health organizations in the prevention and control of coronavirus. Employers should be aware that such communications could implicate a host of workplace legal issues, from OSHA and other workplace safety laws to medical examinations under the Americans with Disabilities Act (ADA), to protected concerted activity issues under the National Labor Relations Act (NLRA).
Under the ADA, employers can require current employees to undergo medical examinations when such examinations are job-related and consistent with a business necessity. Because the risk of transmission of coronavirus, even among international travelers, is still so low, requiring a medical examination for all business travelers returning from international travels likely would not be considered a necessity, and would therefore potentially violate the ADA. Requiring a medical release for all individuals returning from travel to China, however, would likely not be seen as a violation of the ADA so long as it is narrowly tailored and doesn’t delve into other non-respiratory medical conditions.
Another potential precaution that employers could adopt is to have individuals who took trips to China work remotely upon their return for the duration of the 14-day potential incubation period. In enacting such a policy with respect to travelers to China, employers should be clear and document that the 14-day telework period is only for the unusual circumstance of potential coronavirus exposures so as not to create precedent for future ADA claims brought by individuals who later claim that telework was a reasonable accommodation afforded other employees.
If a group of employees refuses to work because of concerns about coronavirus, the refusal may be considered protected concerted activity under Section 7 of the NLRA. In the event of such activity, discipline or termination of the employees could lead to an unfair labor practice charge alleging that the termination or discipline violated the employees' Section 7 rights. We recommend that you discuss these situations with your counsel before any adverse actions are taken.
The Bottom Line: Going forward, employers should continue to monitor government communications, including the CDC website, regarding outbreaks, and should immediately contact the local public health department regarding any suspected exposure to coronavirus. Additionally, employers should consider seeking guidance from counsel regarding protection of workers, both with respect to the privacy of an infected individual and the safety of the remaining workforce.