With the recent outbreak of the coronavirus, employers need to be armed with practical advice to address the complicated workplace issues that stem from the outbreak. At the onset, all employers are responsible for providing a safe workplace for their employees under California's Occupational Safety and Health regulations ("Cal/OSHA"). As a result, employers should be monitoring the latest coronavirus updates, particularly from the
Center for Disease Control
("CDC"), so that they can stay up to date on how to protect employees and address employee concerns. The latest updates as of this writing are as follows:
On January 30, 2020, the World Health Organization designated the coronavirus outbreak a global public health emergency. In response, on January 31, 2020, United States Health and Human Services Secretary Alex M. Azar II declared a public health emergency as well. Also, on January 31, 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
," which essentially provides that foreign nationals who have traveled to China in the last two weeks and aren't immediate family members of U.S. citizens or permanent residents will be temporarily banned from entering the U.S. In addition, anyone entering the United States who was in China's Hubei province in the last two weeks will be subject to a two-week quarantine. The 195 Americans who were recently evacuated from Wuhan are also subject to a federal quarantine order, the first such order in over fifty years. The State Department has provided a Level 4 warning not to travel to China. There are eleven confirmed case of the coronavirus in the United States, six of which are in California, with one confirmed case in Los Angeles County and one case in Orange County, California. So far, 260 people in the United States have been or are being tested for the virus. There have been 361 confirmed deaths in China, and 17,205 confirmed cases there. There is no vaccine for the disease at this time.
Recommended Employer Preventative Measures
According to the CDC, while the virus first was believed to have been spread from animals to people, it appears that the virus is now spreading from person to person. This means that the coronavirus could potentially be transmitted in the workplace, and as a result, the following are some recommended preventative measures that employers should consider taking
Evaluate Work Travel Plans:
Employers whose employees travel to China as part of the job should be aware that the State Department has just provided a Level 4 warning not to travel to China. There is also a ban on foreign nationals entering the U.S. from China. As such, travel to this area should be restricted or completely postponed if possible. Employers should be keeping their employees informed of these updates as well, and letting employees who will be returning to the United States from China know that they may be screened and even quarantined. Employers should also be cautious of employee travel to areas abroad where the virus is spreading.
Cal/OSHA has stringent regulations that govern safety measures that must be taken within certain at-risk workplaces to protect employees from airborne infectious diseases such as the coronavirus. Specifically, health care facilities, laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be in contact with confirmed or suspected cases of aerosol transmissible diseases must implement written aerosol transmissible diseases exposure control plan and procedures, which include plans for engineering and work practice controls and personal protective equipment, respiratory protection, medical services, training and record-keeping. Cal/OSHA's Guidance for these covered employers in responding to the coronavirus can be found
Safety Measures in the Workplace
: Employers should be providing employees with
on best practices for prevention. All employers should make sure that they have in place a written Injury and Illness Prevention Program to promote health and safety in the workplace. (Employers are obligated to have such plans in place under Cal/OSHA.) In particular, employers should consider putting written infectious disease protocols in place to outline employer and employee obligations in response to a communicable disease outbreak in particular, and to coronavirus specifically. Items to consider addressing in any such protocol include the parameters of illness disclosure requirements, related leaves of absence and return-to-work policies, quarantines, paid-time-off and benefits, and employer discretion to evaluate each of these considerations on a case-by-case basis. If implemented, employers should communicate these protocols to employees.
Response to Employees Who May Be at Risk
: If an employee is exhibiting symptoms of the coronavirus (e.g. fever or symptoms of lower respiratory infection, such as cough or shortness of breath) AND has traveled to mainland China within 14 days of the onset of these symptoms or had close contact with a person with a confirmed case of the coronavirus, an employer should make sure that the employee gets medical care right away, avoids contact with other employees, and ask that the employee not return to work until the symptoms are gone and/or a doctor has confirmed that they can return to work.
Things get trickier as to what an employer can do if an employee is only exhibiting symptoms and/or the employer suspects the employee has been exposed to someone with the virus. Under these circumstances, an employer can instruct the employee to stay home for up to 14 days to ensure the employee does not show symptoms of the virus, instruct the employee to obtain a fitness-for-duty/return-to-work notice from their physician before returning to work, and provide a leave of absence to the employee during this time, in accordance with company leave of absence policies. However, no such inquiries or actions should be undertaken absent reasonable cause to believe the employee may have contracted the virus. Employers should ensure they are not undertaking any such inquiries or actions solely because an employee belongs to a particular race or national origin that may have been disproportionately affected by the virus. Moreover, employers should make sure their employees are not displaying discriminatory behavior toward Asian employees.
If an employee has contracted coronavirus, an employer should immediately advise the CDC and the local health department, disinfect the workplace, let employees know, and provide them with information with regard to symptoms of the virus. If employees request face masks, employers should be mindful to follow Cal/OSHA's detailed rules and requirements with regard to the safe use of respirators, including specific information that must be provided to employees. If an employee gets the disease in connection with work, the employer should utilize the workers compensation process. The employee with the condition should be permitted to either work from home or be provided with leave in accordance with company leave of absence policies, including company policy with regard to compensation during leaves.
Cautionary Notes for Employers
While implementing the above recommendations, employers must at all times be mindful of their obligation not to discriminate in the workplace. Employers cannot discriminate against employees who are disabled or are regarded as disabled because they have symptoms of coronavirus. Employers should be mindful of their obligations to reasonably accommodate employees with a disability, and to provide employees with serious medical conditions with protected leaves of absence under the Family and Medical Leave Act ("FMLA") or California Family Rights Act. Employers must also keep in mind privacy and confidentiality laws relating to employee health conditions, such as under the FMLA, or Health Insurance Portability and Accountability Act ("HIPAA").
Likewise, employers cannot discriminate against employees based upon their race or national origin, even if the coronavirus is disproportionately affecting members of a particular protected class. Further in that regard, employers are obligated to take all reasonable steps to prevent harassment in the workplace, particularly given the widespread anxiety over this outbreak, which has the potential to lead to harassing comments or conduct in the workplace towards employees of a particular race or national origin.
In addition, any policies that employers put into place in response to the coronavirus should be composed and enforced objectively and impartially, so as not to unfairly target any particular race or national origin. In addition, employers with collective bargaining agreements ("CBA") or employment contracts should make sure that any such policies do not run afoul of and are put in place in accordance with the CBA or any existing agreements.
As discussed above, employers should stay apprised of all developments with the coronavirus, provide employees with prevention information, review their work travel plans and their safety policies, and consider creating a policy in response to the coronavirus. We encourage you to reach out to us for any help you need in navigating how best to protect your workplace, while making sure to work within the parameters of federal and state employment laws and regulations.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com
Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP