A coronavirus is a common virus that causes an infection in your nose, upper throat or sinuses. Coronaviruses were first identified in the 1960s. They get their name from their crown-like shape. Most coronaviruses are not dangerous. In fact, almost everyone gets a coronavirus infection at least once in their life, most likely as a young child. In the United States, coronaviruses are more common in the fall and winter, but anyone can come down with a coronavirus infection at any time. Sometimes, but not often, a coronavirus can infect both animals and humans. Most coronaviruses spread the same way other cold-causing viruses do: through infected people coughing and sneezing, by touching an infected person’s hands or face, or by touching things such as doorknobs that infected people have touched. The symptoms of most coronaviruses are similar to any other upper respiratory infection, including runny nose, coughing, sore throat, and sometimes a fever. In most cases, you won’t know whether you have a coronavirus or a different cold-causing virus, such as rhinovirus. Although most coronaviruses are not dangerous, some coronaviruses are serious and can cause death.
Two prior types of coronaviruses known to have caused deaths are SARS and MERS. In 2003, 774 people died from a severe acute respiratory syndrome (SARS) outbreak. As of 2015, there were no further reports of cases of SARS. The Middle East respiratory syndrome (MERS), which appeared in 2012 in Saudi Arabia, caused the death of 858 people. MERS cases followed in other countries in the Middle East, Africa, Asia, and Europe. In 2014, two cases of MERS occurred in Indiana and Florida. Both had just returned from Saudi Arabia. In May 2015, there was an outbreak of MERS in Korea, which was the largest outbreak outside of the Arabian Peninsula.
In early 2020, following a December 2019 outbreak in China, the World Health Organization identified a new type, 2019 novel coronavirus (2019-nCoV). This virus has proven to be very contagious. Unlike SARS and MERS, the Chinese have claimed that a person may be infectious before presenting symptoms, On January 31, Germany reported that an individual may have transmitted the virus before presenting symptoms. As a result, the CDC site now states that the Virus may be Infectious before symptoms present. Wearing a mask will not be sufficient to protect oneself from the novel coronavirus as it is thought that it can be spread through the conjunctiva of the eyes. Therefore, people around those who are infected with 2019-nCoV should also wear safety googles/masks.
At the time of this publication, the worldwide the number of cases has passed 24,000, the majority of them in China, and the number of deaths is 494. The World Health Organization (WHO) declared on January 30, 2020 that the 2019-nCoV outbreak is a Public Health Emergency of International Concern, or PHEIC. The Unites States has also declared the crisis a public health emergency.
The U.S. is banning any foreign visitors who have come from China from entering the country. All U.S. citizens who have visited China’s Hubei province in the past 14 days will face mandatory quarantine for 14 days. Other visitors returning from China will be screened and asked to self-quarantine for 14 days. Health officials clarified the distinctions between isolation and quarantine. Isolation is used to keep a person who’s already sick from infecting others. Quarantines restrict the movement of someone who is exposed, but not yet sick. The State Department has issued a level 4 travel advisory telling people not to travel to China because of the outbreak.
Health and Safety Guidelines
As the novel coronavirus continues to spread in China and around the world, employers may want to consider steps to take in addressing the Coronavirus in the workplace. Employers and the public should follow the CDC, Department of Homeland Security, State Department, and to a lesser extent, the World health Organization guidance (WHO guidance is not specifically tailored to the U.S., but WHO is coordinating Global efforts).
The Department of Homeland security determines travel and entry restrictions and will work with the CDC to handle any short-term quarantines. Employers who properly follow the public health guidance are usually safe from successful discrimination, privacy, and ADA legal claims. Common sense and legal counsel are needed to apply specific facts to the broad guidelines, but so long as employers do not take knee-jerk actions, they should be able to protect their employees, customers, and business interests.
The Occupational Safety and Health Administration (OSHA) recently published a webpage that provides workers and employers with interim guidance and resources for preventing exposure to the Coronavirus. See the OSHA 2019 Novel Coronavirus webpage.
Because few cases have been reported in the United States, the first question employers should consider is whether they have a duty to take any measures to prevent or reduce the likelihood of employee exposure to the Coronavirus. That is, do their employees have any risk of exposure? Unfortunately for employers, the short answer is: It depends. (We recognize that non-lawyers despise this answer, but in this case, it’s true!) If an employer has no basis to believe that its employees are at risk of exposure to the Coronavirus, then the Occupational Safety and Health Act (the Act), does not impose any affirmative duties on an employer to engage in abatement or prevention efforts.
If, however, an employer reasonably believes that its employees are at risk of exposure to the Coronavirus (possibly because an employee’s relative just returned from a trip from the Hubei Province in China), or if employees operate in a potentially high-risk industry for exposure (health care, airline, border protection, waste management), employers should consult and follow the Centers for Disease Control and Prevention’s recommendations regarding prevention and exposure. Precautions include, among other things, wearing gowns, gloves, and NIOSH-certified disposable respirators. Certain employees could be exposed to the Coronavirus by handling potentially contaminated waste; employers should ensure that such employees are fastidious in wearing appropriate personal protective equipment like puncture-resistant gloves and face and eye protection.
Although the Act does not have a standard governing exposure to the Coronavirus or communicable illnesses generally, the above-referenced prevention and control measures may potentially trigger certain employer obligations under a variety of standards under the Act, including personal protective equipment, respiratory protection, sanitation, bloodborne pathogens, as well as the Act’s General Duty Clause, which requires employers to provide employees with places of employment free from recognized hazards. Prevention and control measures may also trigger certain employer obligations under federal, state, and local laws, including, but not limited to Title VII of the Civil Rights Act and the Americans with Disabilities Act.
Unlike the common cold or flu, OSHA considers an employee infected with the Coronavirus a recordable injury that must be indicated on an employer’s OSHA 300 log.
Finally, the lack of information regarding the Coronavirus may understandably alarm some employees and lead them to ask questions or raise concerns about safety and health conditions at their workplace. Employers should be mindful that the Act prohibits retaliating against workers for raising such concerns, and employers are encouraged to work collaboratively with employees to address them.
Considerations for Workforces That Travel.
The U.S. State Department has issued a Level-4 Warning recommending that travelers Do Not Travel to China, which is an increase from the earlier Level 4 Warning against travel to Hubei Province of China, including Wuhan. Moreover, effective Monday, February 3, DHS has implemented the following restrictions – Notice of Arrival Restrictions Applicable to Flights Carrying Persons Who Have Recently Traveled from or were otherwise present within the People’s Republic of China:
American air travelers should be aware that if they have been to China in the last 14 days, they will be routed through one of eleven airports to undergo enhanced health screenings. As of this newsletter publication, the following airports were listed:
Any individual traveling from China who has either been in Hubei Province or other areas of the mainland and is showing symptoms associated with the virus will be screened and subject to mandatory quarantine by medical professionals at a nearby facility.
If a traveler who spent time in China, but outside the Hubei province, is re-routed through one of the eleven airports and shows no symptoms following a health screening, they will be re-booked to their destination and asked to “self-quarantine” at their homes.
Response to Employees Traveling
The new DHS restrictions make employer decisions to require returning employees to stay home for up to 14 days more likely be found reasonable. Employees who object on behalf of others or act in groups could be covered by the National Labor Relations Act’s protection of concerted protected activity. You will want to proceed with caution and consult with your attorney before taking any steps in this regard. Moreover, under the federal OSH Act, employees can only refuse to work when a realistic threat is present. Therefore, if employees refuse your instruction to travel for business to any other country for fear of catching the coronavirus, try to work out an amicable resolution.
For example, the employer and the employee can check and discuss the CDC (avoid Nonessential travel), State Department (Do Not Travel to China), and DHS Travel Advisories, which provide guidance on China Travel. The CDC is also advising that some individuals may be more at risk of infection than others in the general population. Thus, follow the CDC direction on pregnant employees or on related reproductive issues, and do not make decisions without medical support. Moreover, actions by other countries, especially in Asia, may cause employee concerns, and absolute warnings and restrictions like those on China may not exist.
At this point, the best course of action is to monitor information and educate your employees to reduce unfounded fears about travel, flying, and working with co-workers. Silence breeds suspicion and paranoia. If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of their having coronavirus is extremely low, it pays to err on the side of caution.
The other critical step you can take at this point is to repeatedly, creatively, and aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu, which is already one of the worst flus in the last 10 years. For the annual influenza, SARS, avian flu, swine flu, and 2019-nCov virus the best way to prevent infection is to avoid exposure. Perhaps the most important message employers can give to employees is to stay home if sick. In addition, instruct your workers to take the same actions they would to avoid the flu. For example:
Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
Avoid touching your eyes, nose, and mouth with unwashed hands.
Avoid close contact with people who are sick.
Stay home when you are sick.
Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
Clean and disinfect frequently touched objects and surfaces.
Surgical masks have not been proven to definitively protect someone because they may not be tight and allow droplets around the edges. However, masks prevent you from unconsciously touching your eyes, nose, and mouth, so they may offer a measure of protection.
Travel Restrictions Specific to / from China
In light of the coronavirus outbreak in China, President Trump issued a Presidential Proclamation limiting the entry of most foreign nationals who were physically present in China during the 14-day period before their attempted entry into the United States. This travel restriction took effect at 5:00 PM ET on February 2.
The Presidential proclamation limiting entry does not apply to those visiting Taiwan, Hong Kong, and Maca. It only applies to those who were present in the People’s Republic of China, and specifically exempts Hong Kong and Macau. In addition, the U.S. immigration law and various other regulations treat Taiwan (a.k.a. Republic of China) separately from the People’s Republic of China. Therefore, Hong Kong, Macau, and Taiwan are all exempt from these travel restrictions.
Although travel restrictions apply to foreign nationals, there is a long list of exempt immigration statuses. For example, people traveling on crew member visas, or diplomatic or International Organization visas are exempt. It also exempts Lawful Permanent Residents (green card holders), spouses and children (unmarried under 21) of U.S. citizens and green card holders, and parents and siblings of unmarried under 21-year-old U.S. citizens and green card holders. The proclamation also includes a provision that permits entry of any foreign national whose entry would not pose a significant risk of spreading the virus, as determined by the CDC. This provision would appear to allow anyone to otherwise seek entry. However, in reality, U.S. Customs and Border Protection may simply utilize the travel restriction rules to deny entry instead of deferring to the CDC’s conclusion.
There is concern that U.S. consulates will deny all visa applications filed in China in the non-exempt categories. However, the State Department has not yet made specific announcements. Some U.S. consulates in China have already postponed interview scheduling. A blanket visa denial rule is unlikely, however, because the terms of this order make it permissible to depart China, remain in a third country for 14 days, and then lawfully seek entry into the U.S.
When a foreign national employee is subject to the imposed travel restrictions, employers may be faced with questions on how to get them back to the U.S. as soon as possible. These situations will be handled on a case-by-case analysis. Most likely, the employee will have to consider going to a third country, remain in that third country for at least 14 days, and then proceed to the U.S. This may require extra planning, such as dealing with a visa to go to the third country. In addition, when several other countries have started to implement similar travel restrictions, the situation remains in flux. It is also unclear if the administration would expand this order to include more countries and regions depending on the ongoing situation of the outbreak.
Fisher Phillips – Howard A. Mavity and J. Micah Dickie Greenberg Traurig LLP – Michael Taylor, Genus Heidary and Adam Roseman WebMD