It would be a rare case that an Employer hasn’t heard about the spreading of coronavirus through California, other states as well as Internationally. Coronavirus is a respiratory virus originating from China. The spread of the coronavirus coupled with migrant workforce raises a web of questions for Employers to navigate.
Can Employers Require Employees to Self-Quarantine?
Employers should consider telling employees returning from China, Italy or any other high-risk region as identified by the CDC or other appropriate agency that they should remain away from work for 14 days upon their return.
Further, even if not symptomatic, Employers may also want to have Employees consult a health care provider to confirm that they are not infectious before returning to work. Employers should offer to cover the cost if they are requiring this step.
When Employer’s implement such policies and procedures, it is important to ensure that they are being uniformly applied so that there is not a claim of disparate impact or a treatment differential.
Can Employer Restrict Travel?
This depends. If the Employee is travelling for work, of course the Employer can restrict that travel. However, if the Employee is travelling for leisure, an Employer could put in place either a request to avoid unnecessary travel or a requirement that the Employee self-quarantine or work from home. Each business model is unique and there is no one size fits all answer given the virus is new, the information is changing daily and the plan will not be universal.
If an Employer is still requiring travel during this time, Employees should also be informed that there may not be adequate medical services available if they travel to an infected region and become ill. If an Employee refuses work that involves travel the Employer must be careful not to engage in any conduct that could be seen as retaliatory.
Does FMLA or CFRA Apply to the Coronavirus?
If the Employer is subject to FMLA or CFRA, then Yes, the coronavirus would qualify as a "serious health condition" under both the FMLA and CFRA. Employers should allow an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well. State law may provide additional leave benefits.
It is important that Employers properly notify Employee’s that they are out on a protected leave and document their interactions.
Are Employees Eligible for Workers Compensation if they contract the coronavirus?
Maybe. If the employee contracts it while on a work trip, it makes it incrementally more likely that would be a covered event. The question is “Does the employees' work require them to be exposed to persons who are infected?”. An easy example of this are health care workers.
If an employee incidentally contracts the disease from a co-worker, there likely will be no workers' compensation liability. If there is workers' compensation liability, employers are responsible for covering the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any). Employers should engage a competent medical professional on infectious diseases for advice to determine whether the disease is work-related.
An employer should evaluate whether it has adequate worker’s compensation insurance coverage and coverage limits that include occupational diseases.
If an employee contracts the disease and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that the virus is going to involve significant medical issues, such as determining (1) whether the employee is infectious, (2) what type of treatment is necessary, (3) whether the employee presents a health risk to others and, (4) when the employee can safely return to work.
Does the Americans with Disabilities Act (ADA) restrict how I interact with my employees due to the coronavirus?
It could. While the ADA protects employees with disabilities, when there is a National or global health emergency, as recently declared by the World Health Organization (WHO), employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition. As of February 28, 2020, the World Health Organization raised its risk assessment of the coronavirus to its highest level.
The Equal Employment Opportunity Commission guidance states, "if the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination."
The ADA protects qualified employees with disabilities from discrimination. A disability may be a chronic physical condition, such as difficulty breathing. Employees may be entitled to an "accommodation" such as leave or be allowed to work remotely for a limited period. While Employees who have contracted the virus must be treated the same as noninfected employees, this is true so long as the infected employees can perform their essential job functions WITHOUT posing a health or safety threat to the workforce. Given that all local, state and federal agencies are requiring individuals with symptoms or a positive test to self-quarantine, an Employer would be justified in requiring the same of its Employees.
What Does OSHA Require?
Under the Occupational Safety and Health Act (“Act” or “OSHA”), the employer has a legal obligation to provide a safe and healthful workplace. One of the agency’s enforcement mechanisms is the ability to issue citations with monetary penalties to employers. The “General Duty Clause” (Section 5(a)(1)) of the Act requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death.
OSHA does not have a specific regulation which deals with the virus, thus OSHA would rely upon recommendations issued by the Centers for Disease Control (“CDC”), the National Institute for Occupational Safety and Health (“NIOSH”), the World Health Organization (“WHO”) or other similar resources. If employees at a worksite are reasonably likely to be “exposed” to the virus (e.g., serving as healthcare providers, emergency responders, transportation workers, etc.), OSHA will expect the responsible employer to develop a program based upon a “hazard assessment” of potential exposure at the worksite (hygiene and decontamination).
Further, it is likely that a worker will refuse to work because s/he believes that his/her health is in imminent danger at the workplace due to the actual presence or reasonable probability of the disease at the workplace. An employee who makes such a complaint is engaging in “protected activity” under Section 11(c) of the Act and is not subject to adverse action by the employer for refusal to work until the employer can establish through “objective” evidence that there is no hazard or that the employer has developed a response plan that will reasonably protect the employee from exposure to the disease.
OSHA has issued a fact sheet regarding protecting workers in the case of a global health emergency. Employers should review its policies and evaluate how to best address risks caused by the Coronavirus:
- Which job activities may put them at risk for exposure to sources of infection, i.e. travel.
- What options may be available for working remotely, or how to utilize an employer's flexible leave policy when employees are sick.
- Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people.
- Good hygiene and appropriate disinfection procedures, including adding sanitizers and the like.
- What personal protective equipment is available, and how to wear, use, clean and store it properly.
- What medical services (e.g., post-exposure treatment) may be available to them.
- How supervisors will provide updated pandemic-related communications, and where employees should direct their questions.
Do Employee’s Get Paid for Time Off Due to the Coronavirus Even if They Don’t Have Any Paid Time Off?
Maybe. If the employee is subject to a contract or collective bargaining agreement that requires pay when employees go on work-required leave, then yes. In the absence of a contract, hourly employees work at-will and are not guaranteed wages or hours. In other words, these employees do not need to be paid.
Exempt employees do not have to be paid if they are sent home for an entire workweek. However, if exempt workers work for part of the workweek, they would have to be paid for the entire week. Thus, be mindful that exempt workers that are working from home, even a little, will be entitled to full compensation.
Can Employers Ask for a Medical Note Before Returning to Work After Foreign Travel or Leave Due to Coronavirus?
Yes. And the employer should offer to pay for any associated expenses.
Do Employers Have to Give Time Off to Employees Not Wanting to Work with Public due to risk of infection?
This is going to depend on the position, the nature of their duties, and the current regulations and recommendations in effect. There may be an obligation to accommodate an employee’s request not to work if there is some objective evidence that they could potentially be exposed to individuals who may have returned from China, Italy or any other known outbreak region or area —for example, customs agent handling travelers from the infected regions in China.
Employees should not be disciplined for refusing to work if they believe that there is a risk of infection because making such a complaint may be a protected activity. If the employer can establish that there is no basis for any exposure to the disease, the employee does not have to be paid during the time period the employee refuses to work.
It would be best to consult legal counsel before any personnel decisions are made relative to an employee not wanting to risk exposure.
Can Third Parties Have Claims Against A Company?
Under general common law principles in most jurisdictions, a landowner (sometimes the Employer) who allows third parties to enter upon its premises for business or related purposes (such as clients, vendors, contract employees), owes these individuals a duty of “reasonable care” to protect them against hazards at the premises which are not “open and obvious.” In the case of the virus, if the landowner (for example, a healthcare provider, emergency responder, transportation related company) is (or should be) aware that there are infectious persons at the premises (whether its own employees or tenants) who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may have become contaminated with the virus, the landowner may have an obligation to prevent such contamination through enhanced sanitation measures.
In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.
Conclusion
The virus is new and as such how an Employer should respond is going to be changing on a daily and weekly basis. If an Employer has any questions or believes that they need to take corrective action against an affected Employee or an Employee refusing to work for fear of exposure they should consult legal counsel.
Christine H. Long is Partner, and Department Chair at Berliner Cohen, LLP. She maintains a diverse litigation practice in employment, hospitality, business litigation, and real estate. Ms. Long is the Chair of the Employment Law Practice Group and Hospitality Practice Group.
For questions contact Christine Long, Partner at Berliner Cohen at 408.286.5800 or by email at Christine.Long@berliner.com.
Resources
Informational Websites
California Department of Public Health https://www.cdph.ca.gov/
Center for Disease Control – www.cdc.gov
OSHA – www.osha.gov or CalOSHA https://www.dir.ca.gov/dosh/
The World Health Organization - www.who.int
CDC Emergency Response Hotline for health employers - (770) 488-7100