The U.S. Centers for Disease Control and Prevention has been responding to the recent outbreak of coronavirus, a contagious respiratory illness that was originally discovered in Wuhan, China, and has rapidly spread to more than 75 other countries and territories. Since the first case was identified in the U.S., employers have been grappling with how to balance the commitment of providing a safe and healthy workspace with privacy and anti-discrimination obligations they have under state and federal law.
We know from the CDC that the virus may be spread via person to person contact and the incubation period is between two and 14 days. With this information in mind, employers may consider allowing employees to work from home if they recently returned from an infected area and have concerns about possible exposure. If remote work is not practicable, employers could alternatively consider providing paid leave during that incubation period.
As of the time of this publication, the CDC has issued a level 3 health travel notice, recommending that individuals avoid all unnecessary travel to China, Iran, South Korea, and Italy. For those employers with employees traveling to any of these areas for business purposes, consider whether postponing or moving the location of the trip are suitable alternatives. Other options may include telephone and/or video conferencing. Similarly, if an employee expresses concern about business travel to other affected areas, employers should consider reasonable alternatives, mindful of OSHA’s requirement that employers provide “a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees.”
Employers must be mindful of all legal obligations, and cannot prioritize employee health and safety over providing a workplace free from unlawful discrimination. By regularly communicating with employees as to current policies and procedures for managing the virus, employers will be best equipped to balance these obligations. For example, if pursuant to CDC or other local health official guidance, an employer decides that any employee showing symptoms of the virus will be encouraged to work remotely until they are fever free, this should be communicated to all employees uniformly. If an employee approaches management with specific questions, the employer should proceed with caution and avoid asking questions that may lead to the disclosure of an employee’s disability. Instead, the employer should focus on the employee’s job duties and what adjustments, if any, can be made to enable the employee to perform those duties. Where applicable, the employer should encourage the employee to follow professional medical advice and may advise the employee on applicable sick leave policies.
Importantly, employers should ensure supervisors are trained to avoid overreaction and are informed about the applicable laws that restrict inquiries into the health status of employees and the importance of adhering to company anti-discrimination policies (including avoiding stereotyping based on race, ethnicity, and national origin).
Please note that the above information is based upon what is presently known about the coronavirus. This is an evolving issue and employers should remain apprised of further updates from the CDC and other local public health officials.
Jaclyn McNeely is an associate with Morgan, Brown & Joy, LLP, and counsels and represents employers in all aspects of labor and employment law, including workplace discrimination, leave laws, wage and hour disputes, collective bargaining and grievance arbitration, unfair labor practices and any related litigation that may arise. She regularly prepares client alerts on trends in labor and employment law. She may be reached at (617) 523-6666 or at [email protected]. Morgan, Brown & Joy, LLP focuses exclusively on representing employers in employment and labor matters.