By Conn Maciel Carey’s COVID-19 Task Force

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus.

Occupational Safety and Health Issues

Federal OSHA does not have a standard that directly covers requirements and prohibitions related to worker exposures to the coronavirus.  The agency has been working on an infectious diseases rule, which could cover the virus, for quite some time.  In a January 30, 2020, letter, Rep. Bobby Scott, Chair of the House Committee on Education and Labor, told Labor Department Secretary Eugene Scalia that:

the Committee is “very concerned that OSHA’s Infectious Diseases standard continues to languish on the agency’s ‘Long-Term Actions’ since being placed on the regulatory agenda almost ten years ago (May 2010).”

Congressman Scott suggested that OSHA take the rulemaking off the long-term action list and issue a proposed rule, stating that the coronavirus “illustrate[s] the urgent need” for the rule.

In the meantime, OSHA is currently directing employers to CDC’s guidance for certain industries.  And when OSHA does not have a specific applicable standard, OSHA can still cite employers under its “catchall” General Duty Clause.  To utilize the General Duty Clause, OSHA must demonstrate that employers failed to address a “recognized” serious hazard, and in so doing, OSHA often points to guidance documents.  So, CDC and other authoritative guidance about protecting workers, such as healthcare workers, emergency responders, lab technicians, etc., can support OSHA citations.

For employers who would like to learn more about OSHA’s General Duty Clause, our OSHA Practice will be presenting a comprehensive webinar – All You Need to Know About OSHA’s General Duty Clause – on July 23, 2020.

For employers with workplaces in California, note that Cal/OSHA does have a unique standard that would apply to exposures to coronavirus by healthcare workers.  Specifically, 2019-nCoV is covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers of healthcare workers, medical transport workers, and others foreseeably exposed to airborne transmissible illnesses, to protect those workers from diseases and pathogens transmitted by aerosols and droplets.  The ATD standard requires employers to have an ATD Exposure Control Plan with procedures to identify 2019-nCoV cases or suspected cases as soon as possible and protect employees from infection, and requires employers to provide training on such topics, as well as others.   Additionally, the standard requires the implementation of engineering and work practice controls to minimize employee exposures.

Cal/OSHA recently issued guidance on the requirements to protect healthcare workers specifically from the coronavirus.  The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings in California.

One final set of issue that non-healthcare employers all over the country are likely to encounter during the current scare is the use of respiratory protection.  We have already heard from several clients about requests from employees to wear N-95 masks, paper masks, or more substantial respiratory protection in general industry workplaces that do not have a connection to treating coronavirus patients. If employers are inclined to permit voluntary use of N-95 filtering face-piece masks, or more substantial masks, it is important to understand that OSHA considers those to be respirators, covered by OSHA’s respiratory protection standard.  Employers must confirm that use of the masks does not create a health hazard before permitting voluntary use of the masks, and then must provide a copy of or the contents of Appendix D of OSHA’s respirator standard to any employee permitted to use the masks.  If more substantial respirators (e.g., tight-fitting full face respirators) are permitted for voluntary use, the employer must also fit test the employee and ensure a medical evaluation is completed to confirm the employee can safely use the respirator.

Note that if the employer has determined that respiratory protection is not required to address a health hazard (i.e., there is no foreseeable exposure to a toxic chemical or an airborne illness in the workplace), the employer is permitted to refuse requests from employees to voluntarily use respirators.

The Americans with Disabilities Act Under the Americans with Disabilities Act (“ADA”), an employee with 2019-nCoV could fall within the definition of a “qualified individual with a disability” and therefore be protected by the ADA, as well as other state/local disability laws.  Additionally, an employee exposed, or thought to be exposed, to coronavirus might be able to bring an ADA claim under the theory that the employee was “regarded as” having the virus.

Under the ADA, employers cannot make medical inquiries about employees unless such inquiries are voluntary or “job-related and consistent with business necessity.”  If, however, an employee poses a direct threat (i.e., a significant risk of substantial harm that cannot be eliminated or reduced by a reasonable accommodation) to the health/safety of himself or others, employers may then require the employee to disclose certain health information.  Similarly, employers that reasonably believe, based on an individualized assessment, that an employee might have been exposed to 2019-nCoV will likely be able to require the employee to undergo medical testing.

Another important aspect for certain employers to keep in mind in this area is that Title III of the ADA requires place of public accommodation to provide the full range of services to individuals

with disabilities.  This means that, if a place of employment is also a place of public accommodation (e.g., hotels, restaurants, etc.), the employer must be careful in implementing any policies that would result in guests or customers who are from areas affected by the outbreak to be subject to certain restrictions.

Family and Medical Leave Act

Under the Federal Family and Medical Leave Act (“FMLA”), as well as similar state/local leave laws, employees may be allowed to take time off for the diagnosis and treatment of their own medical condition, or for that of a family member, related to coronavirus.  If diagnosed, an eligible employee will be entitled to FMLA leave, provided he can provide the required certification from his health care provider.

Additionally, employers who have a reasonable belief that the employee has been exposed to, or has contracted, 2019-nCoV may send that employee home to protect the rest of the workforce.  If, however, an employee is singled out based on a protected characteristic, discrimination claims may arise.  The most obvious example of this, considering the geographical origin of the virus,

would be employers treating employees who are, or are thought to be, of Chinese descent differently than employees of other national origins.  Employers should ensure that they treat all employees with potential exposure equally to avoid such claims.  The same applies for employees who request to take a leave of absence to care for a family member.

It is important to note, for those employees who are sent home, that if the employee performs work for the employer, he must be paid.  If the employee is exempt under the Fair Labor Standards Act (“FLSA”), he must be paid for the entire week during which he performs more than a de minimis amount of work.  If the employee is non-exempt, he must be paid for all time worked.

Alternatively, to help avoid a situation where the difficult decision must be made as to whether to send an employee home, employers are encouraged to consider whether they might be willing to be generous with their remote work or telework policies.  Not only do such policies reduce the legal risk of employees bringing forth claims of discrimination down the line, they also help prevent the potential spread of the virus in the workplace.

What Employers Should Do Now

Employers are encouraged to communicate with their employees about the coronavirus to educate them about the virus, and where they may be able to find resources to protect themselves.  Employers are also advised to communicate that employees should see Human Resources (or some other appropriate contact/department) with any questions/concerns.

For those employers that do not already have protocols on how to respond to infectious diseases, the development of such procedures is highly encouraged.  Such procedures allow employers to respond to outbreaks of this nature in an organized, strategic fashion.  As always, employers are also advised to seek the assistance of counsel to ensure such protocols and procedures are legally compliant.

Given the laws described above, employers need to

be extremely cautious about sharing any health information related to 2019-nCoV diagnosis.  Employers should proscribe to a general prohibition against sharing information about an employee’s health condition with managers, supervisors, and other employees.  If an employee is on a leave of absence associated with coronavirus, however, employers can notify managers, supervisors, and other employees that an employee (but not who) is on a leave of absence that is non-disciplinary in nature.  If an employer believes other employees might have been affected by the employee who has coronavirus and is on leave, the employer might suggest to the potentially

affected employees that they may want to seek medical attention related to the virus, but again, should not reveal the name of the employee who has 2019-nCoV.

Employers are also encouraged to review their remote work and telework policies, and to promptly address any leave or accommodation requests from employees.

Importantly, since this is an emerging and rapidly developing situation, employers should continue to monitor the information and recommendations from the CDC, OSHA, the State Department, and other federal, state, and local government agencies involved in the response.