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Each day more cases of the Coronavirus are confirmed. These daily news updates create fear and raise concerns among employers and employees alike. Employers should take steps to educate their employees and address the spread of workplace illnesses, misinformation, and office gossip.

What is the Coronavirus?

The Coronavirus, which the World Health Organization (“WHO”) named COVID-19, is a respiratory disease first detected in Wuhan City, Hubei Providence, China. Reported symptoms associated with the Coronavirus include fever, cough and shortness of breath. The Centers for Disease Control and Prevention (“CDC”) reports that it believes that the symptoms of the Coronavirus may appear in as few as two days or as long as fourteen days after a person is exposed to the virus. It is still unknown exactly how the Coronavirus spreads, but the CDC advises that it is thought to mainly spread from person-to-person. It also may be possible for a person to contract the Coronavirus by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. The CDC notes that the Coronavirus is an emerging disease and there is much to learn about its transmissibility.

What steps should an employer take to promote a safe workplace?

Employers should take active measures to prevent the spread of diseases and viruses, such as the Coronavirus and the flu. In response to the Coronavirus, the CDC released an interim guidance for businesses and employers which sets forth recommended strategies to reduce the spread of illnesses in the workplace. The CDC strategies include:

• Actively encourage sick employees to stay home;
• Employees who arrive to work sick or become sick during the day should be separated from other employees and sent home immediately;
• Routinely clean frequently touched surfaces in the workplace;
• Advise employees who travel to take certain steps, including but not limited to, checking the CDC’s Travel Health Notices for the latest guidance;
• Advise employees that if they have been exposed to the Coronavirus, they should notify their supervisors at work and the CDC; and
• If an employee is confirmed to have the Coronavirus, the employer should notify their employees of potential exposure in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

Employers should also understand an employee’s privacy rights under the Health Insurance Portability and Accountability Act (“HIPAA”), which protects employee’s health information. While there is an exception to HIPAA that permits the disclosure of an employee’s illness in very limited circumstances when it is necessary to protect the lives of others, employers should be extremely cautious when disclosing an employee’s medical information and consult counsel before making any such disclosure. HIPAA violations can result in significant civil and criminal penalties.

How is business travel affected?

Employers may want to consider limiting business travel to high-risk areas in light of the CDC and DHS travel warnings and restrictions. The General Duty Clause of the Occupational Safety and Health Act (“OSHA”), Section 5(a)(1), requires employers to furnish employees with “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious harm to employees.” Employers with employees working abroad, may want to consider recalling the employees if they are in a high-risk area.

What precautions may an employer take regarding an employee who recently traveled to a high-risk area?

Employers need to be mindful that the ADA restricts what an employer may lawfully ask employees regarding their medical status. However, an employer may inquire if an employee has traveled to an affected area, and inquire about possible exposure to the Coronavirus. In light of the new 14-day mandatory and self-monitored quarantine requirements, it would not be unreasonable for an employer to request that an employee stay home for up to 14 days after traveling to an area identified by the CDC as having an elevated risk for contracting the Coronavirus. Employers may want to have employees who have traveled to high-risk areas work remotely from home during the 14-day quarantine. If an employee requests time off in connection with their own or a family member’s serious medical condition, such as the Coronavirus, the employer should evaluate whether the employee qualifies for leave under the Family Medical Leave Act, state leave laws, such as New York’s Paid Family Leave, or city leave laws such as the New York City Earned Safe and Sick Time Act.

How can employers protect themselves against potential discrimination in the workplace?

It is important for employers to monitor possible workplace national origin discrimination due to unfounded fears of the Coronavirus. Employment discrimination based on race, color, religion, sex and national origin is prohibited by Title VII of the Civil Rights Act of 1964. In addition, the ADA prohibits discrimination based on an employee’s physical, mental or emotional impairment. This also includes employees who are “regarded as” disabled. Employers must not allow employees to shun, harass, or avoid other employees based on their national origin, race, disability or perceived disability. When educating employees about strategies to avoid workplace illnesses, employers should also remind their employees of their anti-discrimination and anti-harassment policies. It is also important to remind employees that while the CDC is monitoring the spread of the Coronavirus, it maintains that there is still a very low risk to the U.S. public.

Employers should monitor information being released about the Coronavirus from federal and state health departments and consult employment counsel regarding workplace legal issues associated with the Coronavirus.

If you have further questions regarding this topic, please contact any member listed below or your usual Tannenbaum Helpern contact.

For more information on the topic discussed, contact:

• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792