On Wednesday, March 11, 2020, The World Health Organization (WHO) declared the COVID-19 (“coronavirus”) outbreak a “pandemic,” intensifying concerns among employers who have already been grappling with the difficult issues presented by the spread of this illness. Recognizing that events are changing by the hour, this alert discusses several issues employers may face when managing and interacting with their employees in the wake of the WHO’s recent announcement. Given the complex and rapidly developing legal landscape and multitude of issues involved, employers should consult with legal counsel about the facts and circumstances of any specific situation relating to the coronavirus prior to taking any action.
Employers may restrict business travel and should refer to the CDC’s website for travel notices concerning risk. Notably, the CDC advises that employers restrict all nonessential travel to areas with a Warning Level 3, and to exercise caution regarding travel to Warning Level 2 areas.
Additionally, employers should be aware that, starting at midnight on March 13, 2020, virtually all travel from Europe to the United States will be suspended for 30 days in accordance with a presidential order. The order also suspends the entry of foreign nationals who have been in specific European countries at any point during the 14 days prior to their arrival to the U.S. These countries includes Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. This ban presently does not include the United Kingdom. Evidencing the rapid development of how this issue is being handled, there also is discussion, but as of yet, no action regarding placing restrictions on domestic travel.
If an employee shares (or the employer learns) that an employee intends to travel to a high-risk area, the employer should advise the employee about the risks of travel, making sure to avoid any action that could result in a claim of national origin discrimination. Please note that employers are allowed to deny such personal leave requests, so long as any denial is based on the travel destination and the business cost of a resulting quarantine (and not the employee’s national origin). Therefore, all decisions should be couched in those specific terms and not include broader references to national origin.
If an employer has a reasonable belief that an employee has travelled to a high-risk country or area and either has acquired coronavirus or been exposed to it, it may ask that the employee not return to work for 14 days (or may accordingly send the person home). In the event that a company requires the employee to stay home, it should ensure compliance with any wage and hour laws and company leave policies, recognizing that varying state laws and employer policies may require such leave to be paid.
Public Gatherings and Conferences
Unlike in some European countries, mass gatherings have not yet been prohibited in the United States (though Disneyland, numerous schools, and most major sports organizations, just within the past day, including the NBA, NCAA, NHL, MLB and MLS, have taken pre-emptive measures to close down, cancel classes, and suspend play in the immediate term). Employers who have planned conferences or gatherings should first immediately reassess the business need for the event. Holding such events specifically may have serious impact on employee morale and retention, and encourage employees to exercise their rights under the National Labor Relations Act.
At minimum, employees should continue to monitor the news and local health official sources about any restrictions in states and localities with coronavirus cases as, e.g., places like New York, Seattle and Santa Clara County are limiting gatherings of certain sizes. Given that the CDC has advised that exposure to coronavirus is increased at events like conferences and that individuals at high risk avoid non-essential air travel, companies should strongly consider postponing events or holding them “virtually.” (See below for additional legal concerns associated with holding such conferences.)
At any workplace site (including at any conferences or gatherings, if held), employers should encourage healthy practices, like providing hand sanitizer and hand-washing stations; attempting to promote social distance; and restricting all common physical contact, like handshakes, etc. The CDC has provided guidance in this regard that employers considering going forward with their event should consult.
In 2009, the EEOC issued guidance designed to help employers manage their workforce in an ADA-compliant manner both before and during a pandemic entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” In light of the WHO’s recent announcement that the coronavirus outbreak is, indeed, a pandemic, the EEOC’s guidance is critical for ensuring that companies do not run afoul of the ADA.
The ADA, which protects applicants and employees from disability discrimination, relates to the coronavirus in three ways. First, the ADA regulates an employer’s disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.” Third, the ADA requires reasonable accommodations for individuals with disabilities, including, of course, during a pandemic.
The EEOC’s “Pandemic Preparedness” guidance answers several useful questions employers may have. For example, among other things, it states that employers may send employees home if they display influenza-like symptoms and that employers may promote teleworking as an effective infection-control strategy. (This, in turn, may require employers who have prohibitions on teleworking to reconsider the scope of those prohibitions and/or restrictions.) Additionally, the guidance allows employers to inquire of employees returning from travel regarding whether the employee has visited high-risk locations or countries without running afoul of the ADA. The guidance also highlights and discusses certain pitfall areas such as requesting medical information from employees and taking employee’s temperatures. For example, it is still prohibited to “out” an employee who the employer believes may have contracted the coronavirus.
Importantly, the EEOC guidance stresses that during a pandemic an employer must continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic. Although not covered explicitly in the EEOC’s guidance, employers should be prepared to face accommodation requests directly linked to the coronavirus, including requests to work from home or avoid certain travel as an accommodation based on the potential impact to them of contracting the virus.
Risks from a Coronavirus Claim
In the event that an employee contracts the coronavirus and believes that he or she was exposed at work, an immediate question is what kinds of risk an employer faces (in addition to lost productivity and morale). First, a claim arising from this scenario may fall within the ambit of workers’ compensation. In the case of health care workers or first responders, such claims likely may be compensable. However, for other types of employees, the analysis will be fact driven and case-specific. Because workers’ compensation is a “no-fault” system, employees only need to establish that the injury occurred while they were at work and that it was proximately caused by their employment.
Complicating matters, contraction of a virus does not qualify as a traditional “injury” but may constitute an “occupational disease,” which is covered. To qualify as an occupational disease (subject to varying state law), employees generally must show two things: first, that the illness arose out of and was in the course of their employment, and second, the illness was caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally. The rule of thumb in determining whether the illness arose out of and in the “course of employment” is assessing whether the employee was involved in some activity where they were benefitting the employer and was exposed to the virus. Such activity could range from normal work days to mandatory conferences or off-site training.
As stated above, compensability for a workers’ compensation claims requires a case-by-case assessment. The key questions will be whether the employee arguably contracted the virus in the “course of employment,” and whether the contraction of the disease was “peculiar” to that employment. A compensable claim may be determined if the employee can show that they contracted coronavirus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.
Furthermore, although no cases have arisen yet, it is also possible that employees who contract the virus may try to assert claims outside of the workers’ compensation system under, e.g., state law negligence theories.
Although this alert discusses some of the most common issues arising from the coronavirus’ spread, we cannot overemphasize that the facts and analysis on this issue are changing rapidly, including as additional regulatory guidance is issued. These issues also often present decisions between bad options (e.g., which of two bad options is the better option).
If you have any questions about any of these novel issues or anything else related to the coronavirus, please contact a member of the Employment Law Team at AGG.