By Christine Zinter
The outbreak of the coronavirus and the attendant fear of contagion, particularly in Washington—seemingly the epicenter of the U.S. outbreak—is creating unique and challenging labor law issues for employers. What’s more, the situation is rapidly changing as the virus continues to spread. Public health agencies’ recommendations are being revised on a daily basis. The following represents guidance on legal issues employers may be facing based on what is currently known about the spread of the pandemic on March 11.
The Occupational Safety and Health Act’s general duty clause requires employers to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This includes a duty to protect workers from exposure to a pandemic virus.
The Centers for Disease Control and Prevention continue to emphasize that the risk to most American workers is currently low.
Certainly, the coronavirus poses a significant risk of substantial harm if an employee has the condition or is a carrier, but before taking any action an employer must consider the likelihood that the potential harm will occur. That determination requires an examination of all relevant information, without consideration of information from unreliable sources and without relying on stereotypes or making general assumptions.
In other words, only workers posing a “reasonable and objective” health or safety threat should be placed on forced leave. Employers should regularly monitor information posted by the CDC (cdc.gov/coronavirus/index.html) and OSHA (osha.gov/SLTC/novel_coronavirus) for guidance on what they consider to be a reasonable cause for concern.
What’s reasonable and objective?
An employer may safely ask about the countries a worker had recently traveled to, or inquire if the worker has reason to believe they had been exposed to COVID-19. However, making inquiry of employees of certain nationalities but not others may indicate racial bias and subject an employer to discrimination complaints under the EEOC.
From an OSHA perspective, it would be appropriate to prohibit an employee who recently traveled to China or has been in close contact with someone diagnosed as infected from coming into the workplace for 14 days. This could mean a work-from-home arrangement or mandatory leave. For the most up-to-date information on CDC risk level, see cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.
Of note, the CDC does not suggest a person exhibiting flu-like symptoms (fever, cough, shortness of breath) in the absence of other risk factors (foreign travel, close contact exposure) is a “person of risk.”
Employee concerns, possible OSHA citations
It is natural that workers may be reluctant to come to work or express fear of working around others who they perceive as a health risk. Unfortunately, misinformation is spreading exponentially faster than the virus itself and anxious employees are likely to perceive threats where there are none. From an employer perspective, if a worker raises a concern about the virus to human resources or a manager, no matter how speculative, the employee has the right to raise the concern without fear of retaliation. It is important to listen to their concerns exactly as if the employee were complaining about a potential safety hazard. Document the information the employee provides and inform the employee that the evidence will be evaluated and any steps that may be warranted will be taken. However, do not discuss another employee’s personal information with the person who lodged the concern, or make any promises to do so.
When it comes to actual citations for safety violations, OSHA is going to rely on the CDC and local public health agencies to determine the level of risk and appropriate response to that risk.
There is no special leave law that requires employers to offer paid time off, beyond what would otherwise be available, during periods of pandemic. Of course, the CDC is encouraging employers to take “nonpunitive” steps that will make it financially viable for both ill and asymptomatic but possibly contagious individuals to stay at home. That being said, no law requires hourly, at-will employees to be paid for time they do not work. Salaried employees, if sent home for an entire week, also need not be paid.
Becoming infected with the coronavirus would qualify as a “serious health condition” under the Family and Medical Leave Act, but it is unclear whether a voluntary quarantine qualifies. In most situations, a person who is advised (according to CDC guidance) to stay isolated and monitor their temperature twice per day and then report to the doctor should a fever develop would be considered to be participating in medical testing and monitoring that spans more than one day. However, overly cautious employers who force employees to stay home from work in the absence of a reasonable belief the employee poses a direct threat should not charge the time against an employee’s FMLA leave. Washington’s Paid Family & Medical Leave Act has stated that a quarantine and/or school and daycare closures are not qualifying events. However, Washington’s paid sick leave law allows eligible employees to use banked sick leave should the workplace, child’s school or daycare facility be ordered closed by a public official for health-related reasons.
Coronavirus and HIPAA
Employers sponsoring group health plans must remain mindful of the way protected health information, or PHI, may be shared under the Health Insurance Portability and Accountability Act, or HIPAA, privacy rule. Protections offered by the privacy rule are not suspended during an emergency.
Covered entities, which include employer-sponsored health plans, and their business associates may disclose PHI without individual authorization to the minimum extent necessary for: treatment; to a public health authority authorized to receive PHI; and to persons at risk of contracting or spreading a disease or condition.
PHI also may be disclosed to family members and other individuals who would be involved in patient care—the law is clear that an employer can share information about an employee’s location, general condition, or death, as necessary, in order to identify, locate, and notify family members or other persons responsible for that person’s care. Health care providers are allowed extra leeway to provide PHI to as necessary to prevent or lessen a serious and imminent threat.
The most important thing for employers who are also a covered entity is to remember that any disclosure of PHI be the minimum necessary to accomplish the purpose of the sharing. If a public health authority asks an employer to disclose information to it for infectious disease reporting, the employer can rely that the request meets the “minimum necessary” standard. In other situations, sticking with the minimum necessary rule is the safest course of action
As a best practice, an employer should never report to the media or the public at large about an identifiable patient, or about specific information about the treatment of an identifiable patient, without the individual’s (or the individual’s legally authorized representative) written consent.
Christine Zinter is an attorney at The Cicotte Law Firm in Kennewick
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