Employers have responsibilities as coronavirus exposure and transmission-related fears grow



January 29, 2020

OSHA Alert

Author(s): Jeffrey M. Tanenbaum, Rachel L. Conn, Maritza Martin, Benjamin J. Kim

Here are some steps U.S. employers can take to reduce exposure to workers and reduce fears stemming from the current outbreak.

As the death toll in China rises to over 100 people from a new coronavirus (currently designated 2019-nCoV) first diagnosed in Wuhan, China, there are steps U.S. employers can take to minimize risks of transmission for potentially exposed employees and assuage coronavirus-related fears among their workers.

Already, multiple diagnosed cases (though not deaths) have been reported in the United States, according to the U.S. Department of Health and Human Services. According to the Center for Disease Control and Prevention (CDC), the new coronavirus is an aerosol transmissible disease (ATD), meaning it can spread to others through the air either by coughing, sneezing, or close personal contact. The CDC explains that symptoms are similar to seasonal flu and other coronaviruses and can include:

  • Fever
  • Cough
  • Shortness of breath

The CDC believes at this time that symptoms of 2019-nCoV may appear in as few as two days or as long as 14 days after exposure. There are also reports that it may be transmissible from individuals before their symptoms appear.

Nonetheless, the CDC and the U.S. Occupational Safety and Health Administration (OSHA) have expressed that, currently, there is no evidence of ongoing transmission of this new coronavirus in the United States. In the United States, people are usually infected with more common human coronaviruses in the fall and winter, and most people will recover on their own.

As a measure of caution, however, employers may want to implement a written communicable illness policy that covers any potential illness communicable in the workplace—and include 2019-nCoV if the employer has employees who may reasonably be expected to be exposed to this new coronavirus. Although not expressly required by federal or California state OSHA regulations, employers (and employees) may find such a policy to be very helpful. A good communicable illness policy should include employee illness reporting obligations, methods employees can use to minimize their exposure and their family members’ exposure to communicable illnesses, reference to employer sick leave policies, procedures for travel restrictions and instructions during an outbreak, rules for when employees should not report to work and when they must not report to work, and the employer’s communication plan in the event of an outbreak. Separate attachments can be used to address outbreak-specific information.

The following federal and California state OSHA standards can also potentially come into play in situations where an aerosol transmissible disease is present:

  • Cal/OSHA’s ATD Standard, 8 CCR § 5199 (applies to mainly heath care employers and other high risk environments);
  • Fed/OSHA and Cal/OSHA’s Respiratory Protection Standards, 29 CFR § 191.134 / 8 CCR § 5144;
  • Fed/OSHA’s General Duty Clause, Section 5(a)(1); and
  • Cal/OSHA’s Injury and Illness Prevention Program (IIPP) Standard, 8 CCR § 3203.

With specific regard to 2019-nCoV, employers can take various steps to help mitigate potential exposure risks and to calm fears related to the disease. They include the following:

  • Given that the circumstances of this outbreak are in flux, stay alert to reputable sources such as the CDC, WHO, and state and local public health agencies and any new advice and instruction that they provide—and share this information with workers.
  • Employers should ensure that their managers and workers receive information about the risks of exposure and have the ability to identify, prevent, and minimize potential exposure. This may prove difficult as the symptoms are generic and difficult to distinguish from a common cold or seasonal flu. However, workers can help protect themselves and others by following common ATD protocols, including frequent and thorough handwashing, proper cough and sneezing practices, and disinfecting common work areas.
  • Employers should follow up on reports from employees about potential exposures to the new coronavirus. As discussed above, the symptoms for this new coronavirus are difficult to distinguish from the common cold or flu, but employers should treat such cases conservatively (“better to be safe than sorry”). Due to various medical privacy laws and other privacy issues, employers must keep medical information confidential to the extent possible and should not ask employees to disclose to them that they have been diagnosed with coronavirus. Instead, they should recommend that employees feeling the symptoms or otherwise suspecting that they may have coronavirus seek medical attention, follow their health care provider’s advice on treatment, and stay home until cleared to return to work.
  • If an employer has a reasonable suspicion that an employee may be infected with coronavirus, the employer can request the employee to see a doctor and to work from home until the employee has a note from a medical provider stating that it is safe for them to return to work. Employers should consider permitting employees who feel such symptoms to stay home or work from home. In some cases, an employer may want to make this a requirement.
  • Employers should consider whether to require medical testing of an employee who has been potentially exposed (for example, because of a recent work trip from Wuhan, China, or other area where there has been an outbreak) before the employee returns to the workplace. Any such testing should not create any out-of-pocket costs for the employee. As noted above, it is important to protect the privacy of such individuals, not only to safeguard the employee, but to avoid fear and panic among co-workers.
  • In that regard, employers may have employees who refuse to work with other employees who they suspect have been exposed to the virus. Education regarding the current low risk of exposure to the virus in the United States and how employees can protect themselves and their family members are important steps in mitigating fears.
  • Lastly, it is important to remember that OSHA regulations protect workers from retaliation. This includes those exposed to the new coronavirus as well as those raising good faith concerns about potential exposure. Employers must take steps to prevent such retaliation.

Due to the complicated nature of these issues and fluid situation, as well as the potential OSHA and employment laws and regulations implicated, employers should consult with legal counsel. For example, the outbreak may implicate other laws that prohibit discrimination against persons with disabilities or medical conditions, obligations under workers’ compensation laws, and collective bargaining obligations.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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