The outbreak of the 2019 Novel Coronavirus (2019-nCoV) – a respiratory virus that can cause fever, cough, difficulty breathing and, in less than 3% of cases, death – has caused panic among citizens in areas where patients have been identified. This particular outbreak was first identified in Wuhan, China, but has made its way to other countries and several states in the U.S. – including California. The Centers for Disease Control (CDC) believes that the immediate risk to the American public is very low, but they’ve released guidelines to help reduce the spread of infection and lessen the likelihood of a major outbreak.
The CDC guidelines include:
- Looking to the CDC website for up-to-date information, especially prior to traveling.
- Getting the flu shot to prevent the flu. While the coronavirus is different from the flu virus, the flu weakens the immune system and increases the chance of a secondary infection.
- Practicing good health habits,. This includes washing hands often with soap and water for at least 20 seconds or using alcohol-based hand sanitizer when washing isn’t an option, getting plenty of sleep, being physically active, drinking lots of fluids and eating nutritious food.
- Avoiding touching your eyes, nose and mouth between hand washings, especially in high-trafficked public areas.
- Avoiding close contact with people who are sick, and wearing an anti-viral face mask in high-risk areas.
- Staying home when you’re sick. That includes work, school, errands and travel.
- Covering a cough or sneeze with a tissue, then throwing the tissue in the trash.
- Frequently cleaning and disinfecting touched objects and surfaces, such as phones, keyboards and doorknobs.
Are Employers Liable for Workplace Exposure to Coronavirus?
There is no short answer to this question, but there are several different laws and regulations in place that employers should consider when faced with this virus in their communities.
OSHA Protection for Workplace Hazards
Under the Occupational Safety and Health Act (OSHA), employers have a legal obligation to provide a “safe and healthful workplace.” While OSHA does not have a specific regulation that details liability surrounding this particular virus, it does have a “General Duty Clause” that is utilized to determine an employer’s obligation to protect its employees against “recognized hazards” to safety or health.
Under the General Duty Clause, OSHA uses other authoritative sources to determine whether or not employers have a responsibility to respond to the hazard. In the case of 2019-nCoV, recommendations issued by the CDC, the National Institute for Occupational Safety and Health (NIOSH), the World Health Organization (WHO) and other similar authorities are utilized to determine whether or not employees at a worksite are reasonably likely to be exposed to the virus. For example, healthcare workers, transportation agents, medical providers and airline employees may be considered reasonably likely for exposure. If this likelihood applies, OSHA requires that the employer has or develops a “response plan.”
OSHA expects responsible employers to have in place or develop a program that is based on a “hazard assessment” of potential exposure at the worksite. A proper response plan should include:
- employee awareness training regarding the hazard;
- procedures requiring the issuance and use of personal protective equipment (PPE) when necessary to prevent infection and transmission;
- A system for reporting infection and providing medical surveillance for employees who contract the disease; and
- appropriate documentation of the above actions as well as preservation of medical records and logging occupationally related illnesses using OSHA Form 300.
Protection for employees also includes the ability to refuse work due to the belief of endangerment. Any employee who believes their health is in danger in the workplace due to the presence or reasonable probability of this particular virus is engaging in a protected activity under OSHA guidelines and is not subject to adverse action by the employer for refusal to work. The employer must objectively establish that there is no hazard to the employee or that the response plan will reasonably protect the employee from exposure before any adverse action can be considered.
FMLA Protection for Sick Workers
The Family and Medical Leave Act (FMLA) requires employers with more than 50 employees to provide up to 12 weeks of unpaid leave to a qualified worker who has a “serious health condition” or a qualified worker whose spouse, child or parent has a serious health condition. For purposes of FMLA, “serious health condition” refers to an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. It is very likely that 2019-nCoV infection will qualify as a serious health condition under FMLA, requiring employers to provide leave for infected individuals when requested by the employee, regardless of where the employee contracted the virus.
Workers’ Comp Benefits
In the event that a worker contracts 2019-nCoV as a result of occupational exposure, the worker is entitled to receive workers’ compensation benefits, pending concrete evidence of workplace exposure. As part of the response plan outlined above, employers may want to consider evaluating whether or not their worker’s compensation insurance coverage and coverage limits include adequate benefits for diseases contracted in the workplace during an outbreak.
Premises and Workplace Host Liabilities
In some cases, employers may also have legal obligations to the employees of another employer who may come to the host employer workplace and potentially be exposed to the hazard under OSHA’s “multi-employer workplace doctrine” or to third parties (clients, vendors, contractors) that enter the premises for business or related purposes under general common law principles.
The key takeaway is that employers have a responsibility to become educated about outbreaks such as this one, and determine whether a response plan is required. Employers who determine, based on a hazard assessment, that there is a possibility of workplace infection, should consider consulting with experts in health and safety to create a response plan that reasonably protects and accommodates their workers over the course of the outbreak.
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