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When a Global Health Epidemic Is on Your Doorstep And Your Company Is at Risk, What Can You Do as an Employer?

When a Global Health Epidemic Is on Your Doorstep And Your Company Is at Risk, What Can You Do as an Employer?

By Renjian “Ethan” Zhang, Tony Kim, Earvin Chionglo, and Fan Chen

Everywhere you look, news headlines are discussing the latest global health crisis: coronavirus. The number of individuals infected and the number of countries with verified cases continue to increase every day. In fact, the World Health Organization recently stated that the coronavirus epidemic is an unprecedented outbreak that constitutes a global health emergency. Although the current number of cases in the United States is small compared to China and other affected countries, individuals and businesses must remain prepared and vigilant in the event that an outbreak spreads to the U.S.
Besides the obvious health effects of infectious disease outbreaks, one must also consider their overwhelming impact on businesses and the economy. For example, epidemics can cause illnesses that force sick individuals and their caretakers to miss work days or become less productive at their jobs. Furthermore, the fear of infection can result in social distancing and even lead to the closing down of businesses, transportation, and public services. For example, an analysis of the SARS outbreak in 2003 estimated that the epidemic caused more than 40 billion dollars of damage to the world’s economy.
Given the high stakes involved, what can your company or business do in order to protect itself? Below, you can find some common questions and answers that companies should be aware of during this current health crisis.

1.What is your duty, as an employer, to prevent the spread of contagious diseases in your workplace?

According to Occupational Safety & Health Act (OSHA), an employer owes a general duty to furnish each of his employees with a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm.

2.Will employers be liable for all diseases acquired by employees in the workplace?

The employer’s knowledge of the presence of an infectious disease in the workplace must be established. It is the employers’ failure to provide reasonable measures to prevent reasonably foreseeable infection that results in liability. A danger/hazard must be established for a violation of the general duty to stand. Recognition of a hazard can be established by OSHA on the basis of industry recognition, employer recognition, or “common-sense” recognition. If the employer knows that his employees are subject to danger of a communicable disease, he can be liable if his employees contract the disease. Such liability is based on negligently exposing another to an infectious disease. Failure to disclose a known condition may be the basis for negligent exposure.

3.What measures shall employers take to carry out its duty to maintain a safe workplace, specifically in response to threat of communicable diseases?

Common sense serves to answer this question: all employers, regardless of their size or industry, should do basic things to prevent the outbreak of contagious diseases, such as making tissues and antibacterial soap available to employees. Employers are not required to take extraordinary steps to guarantee absolute safety.

4. Can an employer be liable for third parties outside their company if the third parties contract an infectious disease from contact with the company or the company’s employees?

Yes. The employers’ duty may also arise from an employer’s special relationship with an endangered person. Courts have found that if a special relationship exists between a person and an endangered person, the first person has an affirmative duty to take steps to aid or protect the second person from danger, regardless of the source of the danger.

5.Can employers require an employee who may be contagious to stay home?

Yes. If the illness presents a direct threat to others, an employer may require employees with an illness that is easily spread to stay home until they have recovered.

6. How should employers react to suspicions within the workplace that a coworker may have a communicable disease?

Employers should react with caution. While employers owe a duty to maintain safe workplace for employees, things can get more complicated if an employee’s rights are implicated under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), or another law. Regardless of whether an employee with a communicable disease has any legal rights, coworkers may not be subjected to an unreasonable risk of infection. Of course, different diseases warrant different precautions. The optimal measures are dependent on specific context. Factors to consider include

    1. the duration of the risk;
    2. the nature and severity of the potential harm;
    3. the likelihood that potential harm will occur; and
    4. the imminence of the potential harm.

7. May employers disclose employee’s information regarding to communicable disease?

No. The ADA prohibits employers from disclosing confidential medical information, including the identity of an employee with a communicable disease.

8. May employer ask an employee if he/she has a cold or the flu? May employer freely ask an employee about his/her medical condition or demand medical examination?

Generally, an employer may ask an employee about whether he/she has a cold or flu. However, an employer generally does not have the right to freely ask an employee about his/her medical condition or demand medical examination. There are very limited circumstances where exceptions to this general denial of right to inquire is applicable.

9. Why can an employer ask an employee if he/she has a cold but cannot demand the employee to go through a medical examination or reveal medical information on request?

The American with Disabilities Act (“ADA”) prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. For example, asking an individual if his/her immune system is compromised is a disability-related inquiry because a weak or compromised immune system can be closely associated with conditions such as cancer or HIV/AIDS. By contrast, an inquiry is not disability-related if it is not likely to elicit information about a disability. For example, asking an individual about symptoms of a cold or the seasonal flu is not likely to elicit information about a disability.

10. Can employers survey the workforce to identify employees who may be more susceptible to complications from pandemic than most people?

Employers may use such surveys but must be careful with the manner of conducting such a survey. For example, an inquiry asking an employee to disclose a compromised immune system or a chronic health condition is generally not allowed because the response is likely to disclose the existence of a disability. Thus, the ADA does not permit such an inquiry in the absence of objective evidence that pandemic symptoms will cause a direct threat. In contrast, employers may make inquiries that are not disability-related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation).

11. During a pandemic, may an employer require his employees to adopt infection-control practices, such as regular hand washing, at the workplace?

Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

12. During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

13. When an employee returns from travel during a pandemic, must an employer wait until the employee develops symptoms to ask questions about exposure to a pandemic during the trip?

No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

14. Can an employee seek leave to stay at home to avoid the potential of getting sick?

No. Generally, an employee is not entitled to take accommodation leave to stay home to avoid getting sick. Exception applies where a preexisting medical condition is likely to be worsened by exposure to a contagious disease.

15. Should employers keep a record of work-related illness and injuries?

OSHA requires that certain employers keep a record (often referred to as an OSHA Form 300 log) of work-related illness and injuries. While there is a regulatory exemption for recoding instances of the standard cold and flu, OSHA has deemed the 2019 Novel Coronavirus a recordable illness when a worker is infected on the job.

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Views expressed here are for educational purposes only and do not replace independent professional judgment. This material does not take into account nor does it provide legal advice regarding the specific objectives or situation of any person. While the information in this material is believed to be accurate and reliable, Nguyen and Chen LLP makes no representation or warranties, expressed or implied, as to the accuracy of such information. Nguyen and Chen LLP expressly disclaims any and all liability that may be based on such information or errors or omissions thereof and reserves the right to amend or replace the information contained herein, in part or entirely, at any time, and undertakes no obligation to provide the recipient with access to the amended information or to notify the recipient thereof.

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