As information about the new coronavirus continues to emerge, employers may wonder how they can prepare.
There are several steps U.S. employers can take as precaution, but they must tread carefully: overreaction to the virus may cause them to take action that could later land them in court. Specifically, employers will want to avoid enacting policies that discriminate against workers as protected by two federal laws: Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), said Greensfelder, Hemker & Gale Officer Amy L. Blaisdell.
Employers will need to be careful about stereotyping, according to Blaisdell. Businesses need to ensure "they're not promoting an environment where there is potential discrimination against an employee because he or she is from China," which is where the disease was first detected, in Hubei Province's Wuhan City. "It's a good time to remind employers to not enact policies against Chinese people but against people who have traveled to China."
Title VII specifically protects workers against discrimination based on both race and national origin. Simply put, employers may not take adverse employment actions against workers because of their race or national origin.
It may be reasonable, however, for an employer to ask a worker who recently traveled to China to refrain from coming into work for 14 days, the estimated incubation period for the coronavirus. Blaisdell pointed out measures like this may not be necessary, however. "That's largely under control at this point by virtue of the fact there are now monitoring systems in place at major airports doing screening to ensure individuals have had that travel experience are being assessed and quarantined," she said.
If an employer does need to ask an individual to stay home, there are several policies that may come into play, she noted. The employer will need to determine whether the employee has paid time off to use if he or she is banned from work during this period. Of course, telework options could resolve that question.
"In general, the best approach is to require remote work where feasible and to continue to pay the employee his or her regular hourly wage," Blaisdell said.
It's also important employers avoid discrimination under the ADA as they make any coronavirus-related decisions. "One thing that is sometimes forgotten is that the ADA has [multiple] pieces," Blaisdell said. One protects an individual who has an actual disability and the other protects an individual with a record of a disability. A third — the "regarded as" prong — "protects an individual against discrimination about a disability they don't have."
There is some related case law employers can learn from. When Guinea, Liberia and Sierra Leone were struck by an Ebola epidemic in 2014, a massage business in Tampa terminated an employee who planned to travel to nearby Ghana. The terminated employee sued under the ADA. The case rose to the 11th U.S. Circuit Court of Appeals, and the court found that while the ADA protects against bias on the basis of a current, past or perceived disability, it does not protect against bias on the basis of "a potential future disability that a healthy person may experience later."
Though similar in respect to foreign epidemics, Blaisdell spotted a key difference: "I think a court would reach a different conclusion if, for example, an employer takes adverse action against an employee who was in China before the outbreak became public or who traveled to a different part of China because of a concern that he or she may have contracted the virus."
Instead, prepare for flu season
To avoid overreaction to the coronavirus news, employers can take the same precautions they would during the flu season, Blaisdell said. HR can remind everyone, for example, to wash their hands, use hand sanitizer and avoid touching their eyes, nose and mouth. Employees should also avoid shaking hands and using one anothers' phones, desk tools and work stations.
It's important employees know to stay home when they're sick — regardless of the condition, Blaisdell said. This is a message employees may need to hear: 9 in 10 workers have come to work with cold or flu-like symptoms, according to an October 2019 Accountemps survey. A third of respondents said they always go to work when they feel unwell.
As HR sets the expectation for sick days, it may be a good time to refamiliarize workers with their remote work options, Blaisdell said.
Use your resources
Blaisdell pointed to a number of free resources employers can use to best anticipate the effects of the coronavirus. The World Health Organization, which recently declared the coronavirus a "public health emergency of international concern," has published situation reports daily since Jan. 21. The Centers for Disease Control and Prevention, in addition to providing a Situation Summary, also provides information on symptoms, transmission, care protocol, prevention and treatment.
Finally, the Occupational Safety and Health Administration (OSHA) outlines information for employers, specifically stating that exposure risk may be elevated for workers in healthcare, deathcare, laboratories, airline operations, border control and waste and water management. The risk of contracting coronavirus is higher, of course, for workers who have traveled to China. OSHA has posted "general tips" for all workers and employers, and it has also provided guidance specific to industries and employment situations with higher risk.