Coronavirus: What Steps Should Employers Take?

In the last week, I have noticed an uptick in the calls from clients regarding the Coronavirus. The new virus, named 2019-nCoV (“Coronavirus”) is the upper-respiratory infection that was first diagnosed in humans in Wuhan, China in late 2019 and has spread to the United States (and worldwide) in recent days. In the United States, the Center for Disease Control (“CDC”) has confirmed Coronavirus cases in the states of Washington, California, Arizona, Illinois and, Massachusetts. With the reported cases in our state and the Trump administration’s declaration that the virus is a public health emergency, both employers and employees are concerned.

How Can Employers Maintain a Safe Workplace?

Employers have a legal obligation to provide a safe workplace for their employees.  To that end, here are a few recommendations to help you navigate the Coronavirus outbreak and help employers maintain a safe workplace.

1. Communicate and educate your employees on the signs and symptoms of the Coronavirus. HR Departments should draft an instructional guide for employees that educates employees about the Coronavirus and ways to avoid it. In drafting a guide, the information should only be from credible and verified sources, such as the CDC website or credible news outlets that credit their information to statements made by governmental agencies. At this time, the CDC believes symptoms appear within two to fourteen days after exposure, with some infected individuals showing little to no signs.
2. Provide hand sanitizer and hand washing stations, flu masks and facial tissues. Encourage employees to wash their hands for at least 20 seconds and cleaning and disinfecting frequently touched surfaces.
3. Evaluate your current workplace emergency response protocols (“ERP”).
4. Assess the risks of exposure by identifying employees who may have travelled to, come in direct contact with, someone that just returned from Wuhan City, and the Hubei Province in China.
5. Implement travel guidelines and procedures for approvals to travel to China. As of February 2, 2020, the CDC issued a Warning Level 3, and recommends that travelers avoid all nonessential travel to China.
6. Consider offering a paid 14-day (reported incubation period of the Coronavirus) leave to employees that just returned from their travels to China. At this time, the CDC and US Customs and Border Protection (CBP) are implementing health screenings to detect travelers with fever, cough or difficulty breathing when entering the United States and up to a 14-day self-quarantine with health monitoring. The CDC website also provides a resource for those travelling from China and what to do when they arrive. You can find the information here:  https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-china.html.
7. Be flexible with your leave policies. On February 2, 2020, the U.S. Department of Homeland Security (DHS) 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. Therefore, employees that are subject to the mandatory quarantine should not be subject to any adverse employment actions if their absence is due to the quarantine. At this time, it is unknown whether employees that have the virus would be protected by the Americans with Disabilities Act because in most cases, it would  be considered a transitory condition. However, an employee could make an argument that it substantially limits a major life activity, such as breathing. In California, pursuant to FEHA, the employee would have to argue that it limits a major life activity.
8. Allow sick individuals to work from home or take leave (as appropriate).
9. Do not publicly identify an employee that has the Coronavirus to other employees. As HIPAA-covered entities prepare to process claims for persons who have or may have the Coronavirus, privacy needs to be considered and included as part of an employer’s protocols and the management of their employees. Cal/OSHA reminds all employers and workers that any suspected cases of Coronavirus must be promptly reported to the local public health department.
10. Review Cal/OSHA’s guidance on protecting health care workers from exposure to Coronavirus. The guidance (https://www.dir.ca.gov/dosh/Coronavirus-info.html) goes over the safety requirements when providing care for suspected or confirmed patients of Coronavirus or when handling pathogens in laboratory settings in California.

What Else?

Since the number of Coronavirus cases in the United States is relatively small, employers should try not to overreact to the threats it poses. The Coronavirus is having a worldwide impact and employees should not be singled out because of their ethnicities. Doing so can subject your organization to a discrimination charge.  Employers should also continue to check for updates but should not administer any medical tests for workers unless they are otherwise a job-related necessity. In short, keep up with the CDC and Cal/OSHA recommendations and if you need additional guidance, reach out to legal counsel.