As the spread of the COVID-19 coronavirus continues to dominate international headlines, attorneys say they are increasingly getting calls from employers inquiring about possible legal issues if their employees became infected. It turns out that a virus that originated on the other side of the globe can implicate a surprising diversity of U.S. employment laws.
Only a small number of COVID-19 infections have been reported in the U.S. so far, but more are expected, and the emergent virus can be a major headache even for employees who don’t contract it, particularly ones who travel internationally.
Most of the cases of COVID-19 that have been detected so far have occurred in China, particularly in and around Wuhan, the capital of Hubei province in central China. When returning stateside, travelers arriving from China may be quarantined for 14 days, which could entail a variety of employment issues, including pay.
As a result, Chinese citizens traveling abroad have faced discrimination in many countries. Employers, however, need to be wary not to fall into that trap.
“Employers should just be aware that there’s a potential Title VII concern that if employees are going to perceive there to be an irrational risk of infection or danger from co-workers who happen to be of particular national origin, because, for example, so many cases are coming out of China, employers just need to be on guard for that kind of dynamic and take appropriate steps to address it when it arises,” said Michael Eckard of Ogletree Deakins in Charleston.
Anti-discrimination laws may not be the first thing that springs to mind when dealing with an international health scare, but pandemics like the latest coronavirus can present a variety of unexpected issues.
The Americans with Disabilities Act, for instance, may offer protection to an employee who has a disability or medical condition that may put them at a higher risk of performing their job or traveling, Eckard said. The ADA includes confidentiality provisions that apply to conditions other than disabilities and require medical information to be kept separately from employment information. Employees have a right to know if there is a health risk in the workplace, but they don’t have a right to know what individual is at risk or if that person has symptoms.
“Many employers are being faced with workers, or employers who are returning from travel to China, for business or personal reasons, and they’re working through with those employees how to properly handle their return to work while at the same time not running afoul of any legal protections that employees may have. That seems to be one of the biggest concerns, is addressing the issue of individuals returning from travel,” Eckard said.
The list goes on. If there are, say, multiple employees that have issues about workplace safety, that could lead to a National Labor Relations Act concern. The Family Medical Leave Act could also be an issue if an employee needs to take care of an impacted family member, particularly if the number of COVID-19 infections in the U.S. does increase substantially.
“A number of these employment laws do come into play and they’re very similar,” said Kathy Dudley Helms, also of Ogletree Deakins, in Columbia. “There are similar issues in each of these instances and this one is no different than that. Health care entities, particularly, have to think well ahead of time because they may have to have employees who work much longer hours if the outbreak actually hits here. They may have significant staffing issues. And so they may have to plan well ahead of time.”
Eckard and Helms worked with legal teams that responded to the Ebola virus and H1N1. Employers may be able to look back at the plans they developed for those pandemics and apply them to this latest one.
Jennifer Bills of the Noble Law Firm in Chapel Hill, North Carolina said she thinks those quarantines are the biggest concern for employers at the moment.
“There are different standards that apply in different industries, and health and safety concerns have to be the utmost importance for everyone, but what I caution against is any kind of rash or hasty judgment on the part of employers, or any assumptions,” Bills said. “There might be cases where somebody needs to take care of a person impacted, or maybe take over some responsibilities of a person impacted … so there are several legal angles that could be impacted in an employment law context.”