Within a span of three months, the novel 2019 coronavirus (COVID-19) has spread from Wuhan, China to more than 60 other countries, including the United States. While the majority of confirmed cases in the United States relate to individuals repatriated from the Diamond Princess cruise ship and other travel-related contacts, a growing number of cases have been identified in individuals for whom the source of the exposure is unknown (commonly referred to as “community spread”).
The Centers for Disease Control and Prevention (CDC) has confirmed community spread in California, Florida, Oregon and Washington. The state of Washington recently declared a state of emergency, as community spread in Washington has resulted in the first deaths in the United States and the first potential outbreak in a long-term care facility. The CDC has also confirmed that it is likely that widespread transmission of COVID-19 in the United States will occur.
As the number of community spread cases continue to grow, employers must develop a flexible action plan to protect employees and mitigate the adverse impact on business operations. To assist employers in this process, set forth below are answers to many of the questions that employers must address in this rapidly developing situation.
What restrictions has the U.S. government imposed on travel, including employment related travel?
In response to the growing public health threat posed by COVID-19 and in order to slow the spread of the virus into the United States, the U.S. government has taken the following steps to suspend or otherwise limit travel related entry into the United States:
- Denial of entry into the United States of foreign national immigrants and nonimmigrants who have been in China (excluding Hong Kong, Macau, and the island of Taiwan) or Iran within the 14-day period preceding their entry or attempted entry.
- U.S. citizens, lawful permanent residents, and their immediate family members who have been in China within the 14-day period preceding their entry will be allowed to enter the United States, but will be redirected to one of 11 airports to undergo health screening. Depending on the individual’s health and travel history, restrictions may be imposed on their movements.
- The CDC has recommended avoiding all nonessential travel to China, Iran, Italy and South Korea, and that older adults or those who have chronic medical conditions should consider postponing travel to Japan. The CDC has also issued a “do not travel” warning to the specific regions of Italy and South Korea affected by the virus.
In light of the continued spread of COVID-19 across the globe, it is likely that the U.S. will take additional actions to limit or otherwise restrict entry into the United States. Employers should visit the CDC’s dedicated Coronavirus Disease 2019 website for the most up-to-date travel restrictions.
What type of movement restrictions may the government impose on our employees?
Federal law allows the CDC to issue involuntary isolation and quarantine orders to prevent the entry and spread of communicable diseases, such as COVID-19, from foreign countries into the United States and between the states. State and local governments also have broad policy powers to control the spread of disease within their borders.
Isolation is used to separate individuals who are infected with a communicable disease from people who are not ill. Quarantine is used to separate and restrict the movement of individuals who were exposed to a communicable disease to determine if they become ill.
If the government has a reasonable basis to believe an individual has been exposed to a communicable disease (e.g., the employee has visited or is returning from a location which has been determined to be a high-risk for exposure to COVID-19), the employee could be at greater risk of being subject to a quarantine order that prevents the employee from returning to work for an extended period.
What OSHA standards apply to COVID-19?
In terms of preventing occupational exposure to COVID-19, the Occupational Safety and Health Act of 1970 (OSHA) contains a General Duty Clause which requires covered employers to furnish “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Additionally, depending on the nature of the specific work environment (e.g., a hospital or other facility treating COVID-19 patients or monitoring individuals potentially exposed to the virus), additional OSHA requirements may apply.
What practical strategies should employers use to comply with its general duty and limit workplace exposure?
The CDC has issued interim guidance to assist employers in developing an action plan to help limit workplace exposure to the virus in non-healthcare settings. The CDC’s current recommended strategies for employers include:
- Actively encouraging sick employees to stay home. Employees who have symptoms of acute respiratory illness should be instructed to stay home and not come to work until they are free of fever, signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). The CDC also recommends that employers not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Separate sick employees. Employees who appear to have acute respiratory illness symptoms (e.g, cough, shortness of breath) upon arrival to work or who become sick during the day should be immediately separated from other employees and sent home.
- Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees. Employers should place posters that encourage staying at home when sick, cough and sneeze etiquette, and hand washing hygiene at the entrance to workplace and in other workplace areas where they are likely to be seen (e.g., restrooms, cafeterias, etc.). The CDC is also encouraging employers to provide tissues, alcohol-based hand rubs and sanitizers that contains at least 60-95 percent alcohol, and no-touch disposal receptacles in multiple locations for use by employees to encourage proper hygiene. Sample posters and education materials can be found on the CDC website.
- Perform routine environmental cleaning. Employers should ensure that all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs, are routinely cleaned. Additionally, the CDC is encouraging employers to provide disposable wipes so that commonly used surfaces (e.g., keyboards, remote controls, desks) can be wiped down by employees before each use.
- Advise employees to take certain precautionary steps before traveling. Employees should be instructed to check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations applicable to the country or countries to which the employee will be traveling. The CDC is also encouraging employers to advise employees to check themselves for symptoms of acute respiratory illness before starting travel. Employees who become sick while traveling should notify their employer and promptly call a healthcare provider for medical advice.
- Additional Measures in Response to Confirmed Cases of the COVID-19. Employees who are not ill but who have a sick family member at home with COVID-19 should notify their employer and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. If an employee is confirmed to have COVID-19, the CDC recommends that employers inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should also refer to the CDC guidance for how to conduct a risk assessment of their potential exposure. In all cases, employers should maintain the confidentiality of an employee with confirmed COVID-19.
Additional information regarding workers involved in healthcare, deathcare, laboratory, airline, border protection, solid waste and wastewater management operations, or international travel to areas with ongoing, person-to-person transmission of COVID-19, can be obtained via OSHA’s COVID-19 control prevention guidance.
Are employers required to record workplace exposures to COVID-19?
OSHA’s recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log. While applicable regulations exempt the recording of the common cold and flu, the Occupational Safety and Health Administration has indicated that COVID-19 is a recordable illness when a worker is infected on the job.
Do OSHA’s Whistleblower Protections apply?
OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. The Secretary of Labor interprets all of the whistleblower protection statutes enforced by OSHA as providing for protection to employees who refuse to perform an assignment when he or she has a good faith, reasonable belief that working conditions are unsafe. In light of the seriousness of COVID-19, it is possible that an employee could refuse to engage in employment related travel or other work activities due to the presence or likely presence of the virus. In such situations, an employee will be engaging in “protected activity” unless the employer is able to objectively demonstrate that the work conditions are safe.
Does the Family and Medical Leave Act (FMLA) apply to employees affected by coronavirus?
While the seasonal flu ordinarily does not meet the definition of a serious health condition, based on the recommendations made by the CDC to prevent the spread of COVID-19 and the various declarations of public health emergency by federal and state authorities, the coronavirus will likely qualify as a "serious health condition" under FMLA. Accordingly, a covered employer1 will be required to grant an eligible employee up to 12 weeks of unpaid FMLA leave if the employee is unable to work, or if leave is necessary for the care of an immediate family member who contracts the virus.
Does FMLA apply to an employee who is under isolation or quarantine for COVID-19?
Individuals who are under isolation will have been diagnosed with COVID-19 and, as noted above, will likely be considered to have a serious health condition. With respect to individuals who are in quarantine (and who may not have COVID-19), the answer is less clear, particularly if the individual is quarantined at home. Accordingly, employers should carefully review the facts and circumstances of each individual situation in evaluating its obligations.
Does the Americans with Disabilities Act (ADA) apply to employees affected by coronavirus?
The ADA is relevant to pandemic preparation in several ways, including (i) the ADA regulates an employer’s disability-related inquiries and medical examinations; (ii) the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial and immediate harm even with reasonable accommodation); and (iii) the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship). The EEOC has stated that the ADA, including the requirement for reasonable accommodation and the rules about medical examination and inquiries, continue to apply to the coronavirus outbreak at this time, but it does not interfere with or prevent employers from following the interim guidance and suggestions made by the CDC regarding the steps employers should take to mitigate the spread of the coronavirus (as outlined above).
The EEOC has issued a pamphlet “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” that outlines the compliant practices that an employer can undertake both before a pandemic has been declared and after a pandemic has been declared. To date, the CDC has not classified the coronavirus as a pandemic and, as to the general American public, the CDC continues to indicate that the immediate health risk from COVID-19 is considered low.
Does HIPAA still apply during the COVID-19 outbreak?
In response to the coronavirus outbreak, the U.S. Department of Health and Human Services Office for Civil Rights has issued a reminder that the basic requirements of the HIPAA privacy rule continue to apply during a public emergency.
Under HIPAA, covered entities may generally not disclose protected health information (PHI) about the patient, without a patient’s authorization, except for certain authorized purposes, such as the treatment of the patient or to public health authorities to the extent necessary to carry out their mission. In a public emergency, however, HIPAA permits covered entities to disclose needed PHI, without individual authorization, to:
- Persons at risk of contracting or spreading a disease;
- The patient’s family members, relatives, friends, disaster relief organizations, the police or other persons involved in the patient’s care;
- Anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of the public or an individual person, including family, friends, caregivers, and law enforcement; and
- A foreign government agency (at the direction of a public health authority).
For most disclosures, a covered entity must limit the information disclosed to the “minimum necessary” to accomplish the intended purpose. Covered entities, however, may rely on representations from a public health authority (such as the CDC) that the requested information is the minimum necessary when that reliance is reasonable under the circumstances (e.g., a covered entity may rely on representations from the CDC that the PHI requested by the CDC about all patients exposed to or suspected or confirmed to have COVID-19 is the minimum necessary for the public health purpose).
Must employers pay employees if the employer tells them not to report for work due to COVID-19 concerns?
Under the Fair Labor Standards Act (FLSA), the answer depends on how the employer classifies the employee. For non-exempt employees, the answer generally is no; an employer need only pay them for the hours worked. For exempt employees, if they work at all during that week, an employer generally must pay them their full salary for the balance of the week, but an employer need not pay them for weeks in which they perform no work at all.
If an exempt employee misses full days of work because he or she has contracted COVID-19, and the employer has a sick leave or short term disability (STD) policy or plan, then the employer can opt not to pay the employee for the days missed, but applicable sick leave laws and the employer’s STD plans and policies may provide the employees with rights to partial or full paid leave.
In light of the urgent need to mitigate the continued spread of the virus, the CDC is encouraging employers to instruct employees who are sick or exhibiting symptoms of acute respiratory illness to stay at home. Additionally, in the event employees are affected by the closing of schools, daycare or other similar facilities, employees may need to stay at home to care for children or other family members. Accordingly, the CDC is also encouraging employers to establish workplace and leave policies that are flexible and non-punitive in nature.