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Key Employment Issues Arising from the Coronavirus.

Key Employment Issues Arising from the Coronavirus

March 5, 2020

As the number of reported cases of the Coronavirus (2019-nCoV) continue to rise, travelers are on high alert.  The World Health Organization (the WHO) has declared the outbreak a public health emergency of international concern.  The US Department of State has upgraded its travel advisory for China to Level 4: Do Not Travel, and the Center for Disease Control and Prevention (CDC) has bumped its own travel advisory for China to Warning Level 3, recommending that travelers avoid all nonessential travel to China.

According to the WHO, the Coronavirus usually causes respiratory illness and common signs of infection include respiratory symptoms, fever, cough, shortness of breath and breathing difficulties.  In more severe cases, infection causes pneumonia, severe acute respiratory syndrome, kidney failure and even death.  The WHO recommends a number of precautions to prevent the spread of Coronavirus, including regular hand washing, covering the mouth and nose when coughing and sneezing, and thoroughly cooking meat and eggs.  The WHO also suggests that people avoid close contact with anyone showing symptoms of respiratory illness, such as coughing and sneezing.

Under the federal Occupational Safety and Health Act of 1970 and applicable state and local laws, employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Given the ongoing outbreak, and an evolving understanding of 2019-nCoV, including its transmission and incubation, it is important for employers to consider what preventative measures they can take to maintain safety and protect their employees from potentially contracting coronavirus as well.

What can employers do when employees wish to travel to China or other affected areas?

Employers may want to restrict employees from traveling to China unless necessary, as advised by the State Department and the CDC.  While the Chinese government has placed the city of Wuhan and other high-risk cities under lockdown, and international travel to China has been reduced by commercial air carriers, the virus still continues to spread.  If employees must travel, they should follow basic infection control precautions by engaging in careful hygiene with soap and water and hand sanitizer; avoid contact with sick people; avoid contact with animals and uncooked animal products; and wear personal protective equipment (PPE).

What about employees who express concerns about travel outside of the US?

If an employee notifies his or her employer of an underlying health condition or other sensitive reason impacting the employee’s desire to travel (e.g. autoimmune disorders, pregnancy), the employer needs to consider a reasonable accommodation consistent with the way the employer handles similar requests to avoid running afoul of the ADA, state or local law.  This potential concern from an employee needs to be weighed against any non-medically verified fears of contracting the Coronavirus during any travel so that employers can continue to operate its business and keep employees employed.

How do employers address key employees working on critical business projects who refuse to travel to China or other international destinations?

Employees who inform their employer that they do not want to travel for fear of contracting a disease like Coronavirus (at a time when the WHO has characterized it as a “Level 4 – Do Not Travel”) could argue the point under OSHA guidelines (or the relevant state law equivalent) that in the face of any adverse employment action for refusing to travel, they are being subjected to disciplinary action for opposing unsafe working conditions.  In addition, an employer may even face allegations that it has negligently exposed its employees to a communicable disease – as has recently been asserted against an aviation company, when a union filed a petition on behalf of its employees for injunctive relief.

While employers generally have broad discretion to decide the job requirements of employees, employers should balance operational business needs with any reasonable concerns raised by employees and should consider reasonable alternatives to accomplish business objectives.

Can employers require medical examinations for employees who have visited China recently?

Employers likely cannot require employees who have visited Wuhan, China or newly impacted locations to undergo a medical examination upon their return, especially if they are asymptomatic.  The ADA prohibits employers from requiring medical examinations unless they are job-related and consistent with business necessity, such as if the employee will pose a direct threat due to a medical condition.

A direct threat is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  Given the precautions currently being taken upon reentry to the US, it is unlikely that an asymptomatic employee may be considered a direct threat.

What can employers do now?

Employers should evaluate workplace emergency response protocols and consider what, if any, modifications are necessary to address a potential Coronavirus pandemic.  Protocols should include contact information for designated employer representatives who can provide additional information to workers about how the Coronavirus may impact their safety in the workplace.

Most importantly, employers should keep themselves informed of news updates.  Check the CDC website regularly for updates and keep an open dialogue with all levels of employees about their concerns about Coronavirus without creating hysteria; remain informed about whether any employees become symptomatic, while keeping the workplace as safe and clean as possible in order to limit any potential spread of the Coronavirus.  Finally, consistent with the above recommendations in the outbreak were to turn into a case of a pandemic, employers should be deliberate in creating strategies for continuing business operations.

If you have any questions regarding this new law or other employment matters, please contact Peter Bennett (pbennett@thebennettlawfirm.com) or Rick Finberg (rfinberg@thebennettlawfirm.com).

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