Analysis

Legal Risks May Lurk In Employers' Coronavirus Response

By Vin Gurrieri
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Law360 (January 31, 2020, 9:24 PM EST) -- Many employers have begun implementing preventative measures to safeguard against the Wuhan coronavirus, and while some precautions come with negligible risk, others may leave employers on shaky legal ground.

The Wuhan coronavirus — a viral outbreak that originated in central China — isn't the first disease that has stoked concerns among businesses and their workers in recent years. In 2014 and 2015, Ebola became a public health crisis, following prior scares over the Zika virus; H1N1, or "swine flu"; and severe acute respiratory syndrome, or SARS.

While employers haven't yet pushed any panic buttons in regard to the coronavirus, Katherine Dudley Helms, managing partner of Ogletree Deakins Nash Smoak & Stewart PC's office in Columbia, South Carolina, said the firm's attorneys are getting plenty of inquiries from businesses on how to handle issues related to the outbreak.

"I think the trick for employers is running that balance of making sure their employees understand that they're taking it seriously and being proactive, but at the same time not scaring anyone," Helms said. "While you want people to be cautious, fear just isn't going to do any good."

Growing Concern

Over the past several weeks, the steady spread of the coronavirus both within China and in other countries has resulted in thousands of confirmed cases. That has prompted health officials worldwide to issue increasingly dire warnings suggesting that people, particularly those that live in or travel to China, take precautions.

Among them, the World Health Organization has officially classified the coronavirus outbreak as a "public health emergency of international concern"; the U.S. Department of State has issued a Level 4 travel advisory, its highest classification, warning against traveling to China; and the Centers for Disease Control and Prevention has similarly issued a warning recommending that all nonessential travel to China be avoided.

U.S. Health and Human Services Secretary Alex Azar on Friday also declared a public health emergency for the entire United States with respect to the coronavirus.

As of Friday, seven cases of the virus had been confirmed in the U.S., with hundreds more under investigation, according to the CDC.

"While this virus poses a serious public health threat, the risk to the American public remains low at this time, and we are working to keep this risk low," Azar said.

Consider Multiple Options

Although the impact of the disease has yet to be widespread in the United States, many employers have already begun taking precautionary measures to get out in front of any problems. But while basic steps like promoting washing hands and other good hygiene practices are unlikely to land businesses in legal hot water, some measures may carry greater legal danger.

One common practice by businesses has been to curb all nonessential business travel to China.

But if employees can't avoid a business trip, the company should ensure the worker understands any potential risks associated with that travel, Helms said. She also cautioned that if someone has an underlying health condition and informs their employer of it, the employer runs a heavy risk of violating the Americans with Disabilities Act if they force them to go.

"If someone has an underlying health issues ... then that probably becomes an issue under the ADA more likely than not, and so it may be a reasonable accommodation for them not to travel," Helms said. "That's going to be very fact-specific, but there very well could be instances where someone has a medical reason where it would not be safe for them to travel."

Another common precaution employers are taking is having workers who took trips to China work from home upon their return — at least for the 14-day incubation period after exposure.

For white collar businesses, such as those in finance, tech or insurance, it is fairly easy to have employees who traveled to China on business or for pleasure telework for a few weeks upon their return, according to Fisher Phillips partner Howard Mavity, founder of the firm's workplace safety and catastrophe management practice group.

While many businesses like retail stores and hotels need their employees present, businesses that let workers work remotely would be wise to create a paper trail that makes clear the uniqueness of the situation. Otherwise, employees might, in some later instance, raise a discrimination claim under the ADA that they weren't afforded telework opportunities, he said.

"They need to emphasize in their own paper trail that this is unusual and not something they'd normally do, because otherwise, we're inevitably going to start seeing ADA claims going, 'You allowed people to telework [due to the coronavirus], you can of course do it for me for my condition,'" Mavity said. "If [employers] build a paper trail that this is an unusual circumstance, [it] makes it less likely that you get hammered that way."

Importance of Communication

On a broad level, employers should have clear policies in place for how they deal with health issues beyond just the coronavirus, attorneys say.

"I'm a huge advocate for educating your workforce," Helms said. "Pull up the question and answer sheet from the CDC and post it or provide the link because it's pretty black and white."

Mavity struck a similar tone, saying it's key for employers to keep workers in the loop ahead of a pandemic or health emergency to stave off problems down the road.

This sort of education could come as part of employers' communications about wellness policies or part of its notices regarding seasonal flu, notifying workers of the process for returning to work if they travel to a high-risk area, he said.

"I think it is best for employers whether they're deeply concerned or not to put out some education," Mavity said. "Once information is out, people tend to calm. It's when they don't know anything and feel like they're getting ignored that they get weird."

Tread Carefully With Health Screenings

Under the ADA, employers generally can't require workers to take medical exams. But the law includes certain exceptions for when an employee poses a "direct threat to the health or safety" of other people, according to Mavity, who said some employers might opt to have workers returning from high-risk areas like China obtain a medical clearance before returning to work.

Most circuit courts use a balancing test under the ADA to weigh the risk of a contagion against the employer's response, and Mavity said requiring a medical release for those returning from China would likely not be seen as a violation, so long as it's narrowly tailored and doesn't delve into other medical conditions.

"If you do a direct-threat balancing test and you're an employer with people engaging with customers or employees working in cube areas, lots of contact with coworkers and all, requiring them to get some sort of medical leave before returning seems justifiable, and I'm aware of employers doing that," he said. "We at this stage think it's a safe risk."

Be Aware of Labor Law

The National Labor Relations Act, which applies both to union and non-union workplaces, gives workers a right to engage in group activity to better the terms and conditions of their employment.

In some instances, an employee fearful of coronavirus may want to, for example, start wearing a protective mask out of fear of getting sick.

But absent a recommendation from the CDC, some employers may not accede to that request, particularly those with businesses that require face-to-face interaction with customers, according to Mavity.

Those businesses, however, could potentially run afoul of the NLRA if that same request is made by a group of workers at a particular location.

"If somebody comes up and says, 'Hey, Joe and I are going to start wearing surgical masks,' or couches it as 'a bunch of us are going to start wearing surgical masks,' then it's protected under the National Labor Relations Act as concerted protected activity because it's no longer just Joe — it's Joe and Bill," Mavity said.

Safeguard Workers' Privacy

Besides employees themselves who may have been exposed to the coronavirus, another landmine employers must navigate are situations in which colleagues of those who made trips to impacted areas lodge internal complaints about not wanting to work near those people.

When that happens, HR officials in trying to assuage fears may land the company in legal peril under the ADA by letting too much information slip about a particular employee's health. 

"You must be real careful not to say, 'Don't worry, we're going to have this employee screened before they come back,' or something of that sort," Helms said. "The HR person in the company should just assure the [complaining] employee that [the company] will take all reasonable steps with any employee who travels, not to select one out even if everyone knows only this one person [has] been to China."

If an employee actually is diagnosed with the coronavirus, Alka Ramchandani-Raj of Littler Mendelson PC, who concentrates her practice on occupational safety and health law, said employers shouldn't panic and ask for medical information from workers, adding that "opening such a door could result in other ADA or disability issues."

"It is likely … that the department of public health or the CDC will come in and assist the employer to make sure they're containing any exposure in the workplace," she said. "For these reasons as well as others, the employer should not ask for a medical diagnosis."

More broadly, Ramchandani-Raj said employers should at the very least stay apprised of the latest developments with the virus so they can adjust their policies as needed.

"Things are going to be changing rapidly, and employers have to keep up with some of the developments and some of the changes to see if whatever they're doing is sufficient," Ramchandani-Raj said. "It's fluid, it's ongoing [and] it's rapidly changing, so the more employers can keep up on the issue, the better."

--Editing by Philip Shea and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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