Employers and employees are understandably concerned about the 2019 Novel Coronavirus, or 2019-nCoV, which is a new respiratory virus first identified in Wuhan, Hubei Province, China. [1]  It is important, however, to be wary of overreacting and avoid taking rash or drastic measures.  Be sure the decisions you make consider not just the health risks, but also employee morale, public relations, and the risk of claims under the Americans with Disabilities Act (“ADA”), Title VII, the Family Medical Leave Act, and other relevant laws.

As of the writing of this article, 2019-nCoV has been confirmed in 24 countries and territories; there are more than 17,300 cases globally and more than 360 deaths (one in the Philippines and the rest in China).  Currently, the United States has reported 11 cases, two of which were transmitted person-to-person.  No cases have been reported in Hawaii.

What Should Employers Do?

• Communicate. Ensure employees know you are looking out for their health and wellbeing.  To prevent the spread of panic or misinformation, provide information only from official sources such as the CDC, the World Health Organization (“WHO”), the Occupational Safety and Health Administration (“OSHA”), and the Hawaii State Department of Health (“HDOH”).  While you may have sent communications about flu season back in October, now is a good time to remind employees to:
  • review sick leave and PTO policies;
  • stay home if they are sick;
  • cover their coughs and practice good handwashing technique;
  • clean and disinfect frequently touched objects and surfaces; and
  • get the flu vaccine – having fewer patients with flu-like symptoms makes it easier to identify those cases that could be 2019-nCov.
• Reconsider Business Travel to China. Under the Occupational Safety and Health Act, workers have a right to refuse to work under conditions that clearly present a risk of death or serious physical harm.  The CDC raised their travel warning for China to Level 3 (the CDC’s highest alert level), and recommends that travelers avoid all nonessential travel to China.  The U.S. Department of State issued a Level 4 advisory (Do Not Travel) to China.  Employers who have employees schedule to travel to China on business should consider alternative options such as video-conferencing.
  
  
• Medical Examinations? Review your company’s policies on medical examinations.  The ADA prohibits employers from making disability-related inquiries and requiring medical examinations (including temperature checks) unless job-related and consistent with business necessity.  Generally, this means that a medical examination may only be required of a current employee when the employer has a reasonable belief based on objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.  Whether the coronavirus rises to the level of a direct threat will depend on the latest CDC and state or local public health assessments.  However, employees clearly displaying signs of illness can be sent home.  In any event, all information about employees obtained through disability-related inquiries or medical examinations must be kept confidential.
  
  
• Employees Returning from China.  Some companies are requiring employees returning from China to work remotely for 14 days, and only return to work if they are symptom-free after that time. However, each situation should be analyzed on a case-by-case basis based on the most current guidance available at the time.  Guidance is constantly being updated.  For example, recent CDC guidance had indicated that individuals who had close contact with someone who is confirmed to have, or being evaluated for, 2019-nCoV infection, can continue daily activities, including going to work, if they do not have any symptoms.  Such guidance, however, has been removed from the CDC’s website.  On February 2, the Department of Homeland Security announced:

U.S. citizens who have been in Hubei province within 14 days of their return will be subject to up to 14 days of mandatory quarantine to ensure they are provided proper medical care and health screening.  U.S. citizens who have been in other areas of mainland China within 14 days of their return will undergo proactive entry health screening and up to 14 days of self-quarantine with health monitoring to ensure they have not contracted the virus and do not pose a public health risk.

This appears to support an employer’s imposition of 14 days of remote work for employees returning from China (though currently not any other countries).  Because guidance is constantly being updated and every situation is different, employers should monitor the CDC and other official government websites for changing recommendations and developments, and consult with counsel or HR professionals before requiring employees to stay home.

• Avoid Discrimination and Harassment. Be sure that all current and new policies are uniformly and consistently implemented and enforced and do not discriminate against individuals who are disabled, perceived as disabled, or of certain national origin.  Also be aware of discrimination and harassment based on disability, race, and nationality.  Keep in mind, however, that Section 7 of the National Labor Relations Act could be implicated if a group of employees refuse to work with another employee who traveled to China or was exposed to the 2019-nCoV virus out of concern for their own safety.

Information is constantly developing, so employers should continue to monitor the CDC, HDOH, OSHA, and WHO websites for the latest updates and recommendations.

Additional Resources:

• Hawaii Department of Health’s 2019 Novel Coronavirus FAQs
• OSHA’s 2019 Novel Coronavirus website provides helpful information, including a fact sheet on Protecting Workers During a Pandemic as well as specific information for healthcare workers, clinical laboratory workers, airline workers, border protection workers, and waste management workers.
• EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, though issued in 2009 during the H1N1 influenza outbreak, may be a helpful resource.
• The CDC has issued information for travelers returning from China.

[1] According to the Centers for Disease Control and Prevention (“CDC”), 2019-nCoV is a new respiratory virus first identified in Wuhan, Hubei Province, China.  For more information, visit the CDC’s website.