Coronavirus Concerns in the Workplace

 

Allen Smith, J.D. By Allen Smith, J.D. January 31, 2020
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Updated 2/3/20

With reported cases of coronavirus in the United States and the Trump administration's declaration that the virus is a public health emergency, employers and employees are starting to get worried. What steps can employers take to prevent its spread? Should there be travel restrictions for U.S. employees who are traveling abroad? And how should employers interact with workers who recently returned from Wuhan, China, the epicenter of the epidemic?

Take Reasonable Precautions

The virus has spread fast since it first appeared in December 2019 in Wuhan, killing at least 362 people, including the first death outside China in the Philippines, and sickening more than 17,300, CNN reported Feb. 3. 

With an incubation period of at least two weeks, the virus has spread further, despite travel bans in China. Health authorities now believe infected people can spread the virus before they begin to show symptoms, increasing the likelihood that they will pass the illness to others. There have been cases reported in the following countries, CNN reported Feb. 2:

  • Australia. 
  • Cambodia. 
  • Canada.
  • Finland.
  • France. 
  • Germany. 
  • Hong Kong.
  • India.
  • Italy. 
  • Japan. 
  • Macao.
  • Malaysia.
  • Nepal. 
  • The Philippines. 
  • Russia. 
  • Singapore.
  • South Korea.
  • Spain.
  • Sri Lanka.
  • Sweden.
  • Taiwan.
  • Thailand.
  • The United Arab Emirates.
  • The United Kingdom.
  • Vietnam.
  • The United States.

Symptoms associated with the virus include fever, cough and trouble breathing. "While severe illness, including illness resulting in several deaths, has been reported in China, other patients have had milder illness and have been discharged," according to the U.S. Centers for Disease Control and Prevention (CDC).

On Jan. 21, the CDC confirmed the first case of coronavirus in the United States in the state of Washington. The patient recently returned from Wuhan.

In a Jan. 24 press briefing, the CDC confirmed the second case of coronavirus in the U.S., this time in Chicago, according to CNN. The patient also recently returned from Wuhan. "She was not ill while traveling, and health authorities do not think she spread the virus during that time," CNN reported. Her husband caught the virus, the first confirmed person-to-person transmission of the virus in the U.S., the CDC announced Jan. 30.

On Jan. 26, NBC News reported three other cases: one in Maricopa County, Ariz.; one in Los Angeles County, Calif.; and one in Orange County, Calif.

CNN reported two more cases in the U.S. on Feb. 1: one in California and one in Boston. On Feb. 3, CNN reported three more cases in California.

As of Feb. 3, 260 people in the U.S. have been checked for possible inflection: 11 have tested positive, 167 have tested negative and 82 results are pending, according to the CDC.

Punam Singh Rogers, an attorney with Constangy, Brooks, Smith & Prophete in Boston, recommended that travelers preparing for a trip abroad check the State Department's travel advisories.

The World Health Organization on Jan. 30 declared that the coronavirus was a global public health emergency. In light of this, the State Department on Jan. 30 issued an advisory not to travel to China due to the coronavirus.

The Trump administration declared a public health emergency in response to the coronavirus on Jan. 31 and announced that American citizens returning from certain parts of China would be quarantined for two weeks, The Wall Street Journal reported. Foreign nationals who have been in China within the prior two weeks will be denied entry into the U.S.

Employees can take some commonsense steps to prevent the spread of the coronavirus, just as they can with the common cold. Wash your hands frequently and sneeze into your elbow, said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C.  If water isn't available, use hand sanitizers. "There's no need for panic," she said, adding that employees do need to be educated and "all have to be cautious."

Tell employees that if they are sick, they must stay home, said Howard Mavity, an attorney with Fisher Phillips in Atlanta.

Business Travel Restrictions?

Employees may balk at having to travel to China or elsewhere for work due to the virus and many airlines have cancelled flights to and from China.

When there was an outbreak of severe acute respiratory syndrome (SARS) in 2003, resulting in nearly 800 deaths, it was not uncommon for employees to say they did not want to travel to a country that had a reported case of SARS, Mavity said.

How employers respond to workers who don't want to travel right now will depend on the reasonableness of the employee's objection.

Mavity said employers should accommodate older employees and employees with immunodeficiency, as they are at greater risk.

Helms noted that anyone who is pregnant should be accommodated as well.

But don't assume someone who is pregnant shouldn't travel, Mavity cautioned. "Those decisions need to be dictated by what the CDC says," he stated.

What if an employee doesn't want to travel anywhere for fear of getting the virus on a plane? That would not be reasonable, according to Mavity.

All flights from China are being sent to seven airports for health screenings, The Washington Post reported Jan. 31. Four airports subsequently were added, CNN reported Feb. 2.

Flights scheduled from Wuhan International Airport to the U.S. were halted, The Washington Post reported Jan. 23.

Workers Who Recently Returned from China

Mavity said that employers could require workers who have recently returned from Wuhan or even China—regardless of whether it was for business or personal reasons—to stay away from work for the incubation period of the virus. 

The CDC ordered a 14-day quarantine for 195 Americans recently evacuated from Wuhan, CNN reported on Jan. 31. The CDC called the quarantine precautionary and preventative, describing the immediate risk to the U.S. public as low, The Wall Street Journal said.

The U.S. Department of Homeland Security (DHS) on Feb. 2 announced that U.S. citizens who have been in China's Hubei province, where Wuhan is located, within 14 days of their return will be subject to up to 14 days of mandatory quarantine. U.S. citizens who have been in other areas of mainland China within 14 days of their return will undergo entry health screening and up to 14 days of self-quarantine with health monitoring, the DHS said.

Mavity said it would be inadvisable to have a similar policy of staying away from work for the incubation period for anyone returning from foreign travel anywhere at the present time, as valid claims under Title VII of the Civil Rights Act of 1964 might arise if there were such a policy. Keep morale and public relations concerns in mind if you do implement a policy restricting travel or preventing employees from being at work if they've visited Wuhan recently.

The Los Angeles County Public Health Department said in a Jan. 26 statement that there is no immediate threat to the general public, that no special precautions are required, and that people should not be excluded from activities based on their race, country of origin or recent travel if they do not have symptoms of respiratory illness. 

Risk of Lawsuits

Mavity doesn't think employees who have the virus would be protected by the Americans with Disabilities Act (ADA) because in most cases coronavirus is a transitory condition, though some plaintiffs could make an argument that the ADA covered it if the virus substantially limited a major life activity, such as breathing.

There also is a potential ADA risk if an employer perceives someone as ill with the virus that the employee doesn't have, said Amy Epstein Gluck, an attorney with FisherBroyles in Washington, D.C. An ADA disability includes regarding someone as having a physical or mental impairment that substantially limits a major life activity.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

If a worker has the coronavirus, Helms noted that his or her employer should not identify the person.

If someone who recently came back from Wuhan challenged a requirement for such travelers to stay home during the incubation period by alleging discrimination based on Asian descent, Mavity said the claim wouldn't be valid if there is a high hazard of the coronavirus spreading from those coming from Wuhan. 

For now, an employer who restricts workers who've recently traveled to China from returning to work might be vulnerable to ADA and Title VII claims, even if they were frivolous, and angering workers who think the employer overreacted—factors the employer would need to weigh against current health risks.  

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