By Mark A. Lies II and Daniel Birnbaum
INTRODUCTION
By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (2019-nCoV) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China. Although the United States has only experienced several cases of the virus, it is only a matter of time before the disease surfaces in more cases throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.
BACKGROUND
What is Coronavirus?
Coronavirus is a respiratory virus originating from China. An individual infected with Coronavirus will often suffer the following symptoms:
Currently, it is believed that an individual’s symptoms may appear anywhere from 2 to 14 days after exposure to the virus. The virus has a mortality rate of less than 3% of individuals who become infected.
The first infection in the United States was reported on January 21, 2020, with most cases on the west coast, but there has been a confirmed case in the Midwest. Currently, there is no known vaccine or treatment of the virus.
How is Coronavirus Transmitted?
Health authorities have not confirmed how Coronavirus is transmitted, but suspect it is spread person-to-person. There is also evidence that the virus has been spread by animal sources, including individuals with links to seafood or animal markets.
Virus transmission may happen on a spectrum and authorities are not sure if the virus is highly contagious, or less so. For person-to-person transmission, health authorities suspect the virus is spread through coughing and sneezing, similar to how influenza and other respiratory pathogens are spread.
WHAT ARE THE LEGAL RAMIFICATIONS THAT EMPLOYERS SHOULD CONSIDER?
There are several employment and other laws which may be directly involved with this disease and must be considered by employers. These are as follows:
Occupational Safety and Health Act
General Duty Clause
Under the Occupational Safety and Health Act (“Act” or “OSHA”), the employer has a legal obligation to provide a safe and healthful workplace. One of the agency’s enforcement mechanisms is the ability to issue citations with monetary penalties to employers. The “General Duty Clause” (Section 5(a)(1)) of the Act requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death.
Given that OSHA does not have a specific regulation which deals with the virus, the Occupational Safety and Health Administration (the “Agency”) will utilize the General Duty Clause. In order to determine the scope of the employer’s obligation under the General Duty Clause, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources. In this case, OSHA would rely upon recommendations issued by the Centers for Disease Control (“CDC”), the National Institute for Occupational Safety and Health (“NIOSH”), the World Health Organization (“WHO”) or other similar resources. If the Agency can establish that employees at a worksite are reasonably likely to be “exposed” to the virus (e.g., serving as healthcare providers, emergency responders, transportation workers, etc.), OSHA will require the employer to develop a plan with procedures to protects its employees.
Multi-Employer Worksite
Under the Act, the host employer may also have additional legal obligations to the employees of another employer who may come to the host employer workplace and may potentially be exposed to the hazard (in this case to virus carriers). OSHA can utilize its authority under the “multi-employer workplace doctrine” to issue citations to the host employer when personnel of another employer are exposed. In these instances, citations can be issued by the Agency to the host employer if another employer’s staff members are exposed or if the host employer created the hazard or exposed the other employees to the hazard. The host employer or the controlling employer at the site will ultimately be held responsible to correct the hazard.
Response Plan
OSHA will expect the responsible employer to develop a program based upon a “hazard assessment” of potential exposure at the worksite (hygiene and decontamination), including:
conduct employee awareness training regarding the hazard;develop procedures requiring the issuance and use of personal protective equipment (PPE) (e.g., masks, gloves) if necessary to prevent infection and transmission; develop a means of reporting infection and providing medical surveillance for employees who contract the disease; maintain appropriate documentation of the foregoing actions; preserve medical records; record on the OSHA 300 Log any illnesses which are occupationally related.
Whistleblower Protection
Because of the significant health hazards associated with this disease, it is possible that an employee could refuse to work because s/he believes that his/her health is in imminent danger at the workplace due to the actual presence or reasonable probability of the disease at the workplace. An employee who make such a complaint is engaging in “protected activity” under Section 11(c) of the Act and is not subject to adverse action by the employer for refusal to work until the employer can establish through “objective” evidence that there is no hazard or that the employer has developed a response plan that will reasonably protect the employee from exposure to the disease.
Worker’s Compensation – Disability Benefits
In the event that an employee contracts the virus as a result of occupational exposure, (in other words, the illness “arises out of and in the course of employment” which the employee must prove with competent medical evidence), the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should evaluate whether it has adequate worker’s compensation insurance coverage and coverage limits that include occupational diseases.
If an employee contracts the disease and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that the virus is going to involve significant medical issues, such as determining (1) whether the employee is infectious, (2) what type of treatment is necessary, (3) whether the employee presents a health risk to others and, (4) when the employee can safely return to work. Therefore, it is essential that the employer identify a competent medical professional with expertise in infection control who can advise it on all medically-related issues, including worker’s compensation.
Family and Medical Leave Act
Under the Family and Medical Leave Act (“FMLA”), employers who have more than 50 employees are required to provide up to twelve (12) weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee is also eligible under the FMLA in the event of a “serious health condition” affecting its spouse, child or parent(s).
If an employee contracts the virus, this disease will most likely be considered a “serious health condition” under the FMLA warranting the unpaid leave. Similarly, if an employee’s parent, spouse or a child contracts the disease, this will likely be a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for such an immediate family member.
It is certain that issues may arise if the employee contracts the disease but is able to continue working while potentially exposing other employees to infection. Since the CDC appears to recommend removal of such individuals from the workplace during the incubation period of the disease (2-14 days) to prevent transmission of the disease, the employer may have to consider placing the employee on an FMLA leave or providing some other form of leave despite the employee’s desire to continue working.
If the employee exhausts the entire twelve weeks of FMLA leave, and is unable to return to work at that time, the employer may wish to consider additional unpaid leave for the employee, although such leave would be outside of the FMLA required reinstatement rights.
In addition to the Federal FMLA, the employer may have obligations to provide leave to employees where the employee does not qualify for a leave under the Federal FMLA.
Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) provides certain protections to employees who may have physical, mental or emotional “disabilities” but who are otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment which substantially limits one or more of the major life activities of an individual (e.g., breathing, working, speaking) which is chronic in nature. Because of the fact that the virus has resulted in serous illness, even though it is temporary in nature, it is very conceivable that it would be considered to qualify as a “disability”.
The ADA may also become a factor if an employee develops a disability as a result of the disease and cannot return to their former work duties because of such impairment. The employer must then be prepared to engage in an “interactive process” with the employee which involves a case-by-case dialogue regarding the employee’s ability to return to work, any work restrictions, what accommodations may be available which do not cause undue hardship to the employer or whether the employee’s disability presents a direct threat to the health or safety of the employee or other employees. Again, it is recommended that employers engage competent medical advice regarding any accommodations which may be warranted as a result of the long term effects of this disease.
Premises Liability
Under general common law principles in most jurisdictions, a landowner (sometimes the employer) who allows third parties to enter upon its premises for business or related purposes (such as clients, vendors, contract employees), owes these individuals a duty of “reasonable care” to protect them against hazards at the premises which are not “open and obvious.” In the case of the virus, if the landowner (for example, a healthcare provider, emergency responder, transportation related company) is (or should be) aware that there are infectious persons at the premises (whether its own employees or tenants) who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may become contaminated with the virus, the landowner may have an obligation to prevent such contamination through enhanced sanitation measures.
In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.
RECOMMENDATIONS
It is recommended that employers become knowledgeable about this disease by accessing recognized sources of information (identified below). In addition, employers should determine, based upon a “hazard assessment,” whether a virus response plan is required. For example, does the employer employ individuals
(a) in industries where exposure may be likely (healthcare, emergency response, transportation) or
(b) who have or are expected to travel to/from China or other geographical areas where the disease has been identified.
If so, the employer may need to consider:
(1) means and methods to protect employees before they travel to areas known to have experienced the virus,
(2) what procedures will be followed when these employees return to the United States from such areas (e.g., possible quarantine, fitness for duty medical examination if the employee exhibits the symptoms of the virus). In some cases, the employer may be able to offer employees the option of remote work to isolate these employees from the general working populace during the incubation period.
Finally, in the event that the employer engages in activities where there is a possibility of employee infection, the employer should consider consulting with its local Department of Public Health to obtain guidance, as well as engaging with a medical provider who has particular expertise with infectious diseases of the magnitude of the virus.
WHERE CAN I FIND ADDITIONAL INFORMATION ON THE CORONAVIRUS?
Informational Websites
Center for Disease Control – www.cdc.gov
U.S. Department of Health & Human Services – www.flu.gov
OSHA – www.osha.gov
The World Health Organization – www.who.int
CDC Emergency Response Hotline for health employers – (770) 488-7100
Local Department of Public Health
NOTE: If you wish to receive complimentary copies of this article and future articles on OSHA and employment law related topics, or is interested in training on these topics, please contact Mark A. Lies, II at mlies@seyfarth.com or Daniel Birnbaum at dbirnbaum@seyfarth.com to be added to the address list.
Mark A. Lies, II, is a partner with the law firm of Seyfarth Shaw LLP, 233 S. Wacker Drive, Suite 8000, Chicago, IL 60606 (312) 460-5877, mlies@seyfarth.com. He specializes in occupational safety and health and related employment law and civil litigation.
Daniel R. Birnbaum is an associate with Seyfarth Shaw, (312) 460-5129, dbirnbaum@seyfarth.com. His practice focuses on occupational safety and health, traditional labor matters, and related employment law and civil litigation.