ILMA Compoundings - March 2020 - 34

COUNSEL COMPOUND

Employers and the Coronavirus
By Jeff Leiter

A

s news that the accelerating
coronavirus (2019-nCoV)
outbreak that originated in
Wuhan, China, has spread to the
U.S., and as it has been declared by
the World Health Organization to
be a "Public Health Emergency of
International Concern," employers are
trying to assess the effects the virus
might have on their employees and
businesses, including supply-chain
disruptions and government-imposed
travel restrictions, quarantines and
border screenings for workers. Let me
share with you some of my suggestions from where I sit.
I typically start my analysis with
the Occupational Safety and Health
Act's "general duty" clause. Under
this statute, administered by the
Occupational Safety and Health
Administration (OSHA), employees
have the right to working conditions
that do not pose a risk of serious harm.
In addition, OSHA's Hazard Communication Standard requires workers to
receive information and training about
workplace hazards, and other OSHA
rules allow workers to exercise their
workplace rights without retaliation.
As a first step under this legal and
regulatory framework, employers
should be monitoring coronavirus

34

MARCH 2020

| COMPOUNDINGS | ILMA.ORG

developments and assessing whether
any employees are, or could be, at
actual risk of exposure. OSHA's
website has guidance on employer
measures to address public health crises, such as a pandemic flu. I assume
that OSHA will update its guidance as
the spread of the coronavirus evolves.
As part of employers' efforts to
keep their employees healthy and
to prevent the spread of the coronavirus, it makes sense to educate
workers on both the symptoms of the
coronavirus and the precautions to
minimize the risk of contracting it.
According to the Centers for Disease
Control and Prevention, symptoms
appear within two days to 14 days
after exposure, with some infected
individuals showing little to no signs
of the upper-respiratory illness. Using
OSHA's existing influence guidance,
providing hand-washing stations and
hand sanitizer, cleaning frequently
touched surfaces and objects, and
setting out flu masks and facial tissues
are immediate steps that can be taken.
A more difficult task is minimizing
unnecessary meetings, including with
visitors, because of the need to identify
individuals who may have recently traveled to China, particularly Wuhan City
and the Hubei province. To the extent
you have knowledge that employees or
visitors have recently traveled to China
(particularly the Wuhan area), employers may ask the returning employees to
work from home or place them on paid
leave, while using videoconferencing
to meet with visitors. Such measures
should follow an analysis of the individual's travel and his or her current
condition. In short, employers should
balance the employee's rights with

protecting against the potential spread
of the coronavirus.
The media has widely reported on
the number of multinational firms
that have fully suspended travel to
China. Some air carriers have reduced
or stopped flying certain routes. In
addition, many companies have
implemented travel policies requiring
management approval for international
travel considered essential. Employers
should remain sensitive to travel
requests from employees with health
issues, such as those employees with
immunodeficiencies and older or pregnant workers. Before approving travel,
monitor U.S. State Department travel
alerts for the level of danger posed by
travel to specific areas of the world.
There is something a little more
nebulous to keep in mind. While
employers need to remain sensitive
to employee concerns about the
coronavirus and accommodate these
concerns to the extent reasonable, they
should not automatically assume that
a particular employee would opt out
of travel. One can see the passed-over
employee complaining of disparate
treatment. At the same time, employees should not be disciplined if they
refuse to travel to Asia.
Someone asked me the other day
whether an employee who contracts the
coronavirus could be considered to have a
disability under the Americans with Disabilities Act (ADA). The answer generally
is no, largely because the coronavirus
is a temporary upper-respiratory
condition, even though it affects one's
breathing. However, employers should
resist making "armchair" diagnoses of
any employee's illness or other health
Continued on page 37


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ILMA Compoundings - March 2020

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ILMA Compoundings - March 2020 - 1
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