The outbreak of the 2019 Novel Coronavirus (COVID-19) has created a number of questions and compliance challenges for employers in the United States as well as across the globe. This is a fluid and rapidly changing situation. Employers must carefully balance concerns related to employee and public safety with protecting employees from unnecessary medical inquiries, harassment, and discrimination – all while complying with immigration, leave, and medical privacy laws. In the midst of a public health crisis, this is no small task. Employers should work to update or develop emergency preparedness, travel, and response plans. Responsibility should be assigned to specific individuals or teams to assess the hazard, communicate with employees and the public, and implement appropriate security measures. This article provides guidance and background that employers need to know before responding to the outbreak.
The CDC’s website is a key source for US employers. Employers may be tempted to play doctor, passing along medical advice or making judgment calls based on their general understanding of public health issues. However, agencies such as the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC) frown upon any individual employer’s medical judgments—they want employers to rely on objective advice and react to actual (not just perceived) hazards. Whenever employers can point to CDC guidance to support employment decisions, they are on steadier ground.
According to CDC and other reports, the COVID-19 outbreak started in Wuhan, China, and is spreading rapidly through person-to-person transmission. As a result, challenges for employers in China are unique. The COVID-19 virus is part of a large family of viruses common to animals, which less frequently infect people and then spread by person-to-person transmission. Related coronaviruses include the Middle East Respiratory Syndrome (MERS), first reported in Saudi Arabia in 2012, and the Severe Acute Respiratory Syndrome (SARS), first reported in Asia in 2003.
At this point, the CDC has stated that COVID-19 is a “very serious public health threat,” but that the immediate health risk to the general public in the United States is low. Among the federal agencies that have already taken action, the CDC has announced that it is closely monitoring the situation and working with the World Health Organization (WHO) and state and local public health partners to respond to this emerging public health threat. On January 7, the CDC established the COVID-19 Incident Management Structure, and on January 21, it activated its Emergency Response System to better provide ongoing support to the response.
At this time, OSHA has developed a webpage that contains employer guidance, including referring employers and workers to the CDC guidance discussed above. This guidance is located on a new Safety and Health Topics webpage on the virus, which reminds employers that OSHA standards apply to protecting workers from COVID-19. At this time, there is no specific OSHA standard covering COVID-19, but OSHA highlights the following relevant standards:
OSHA has additional guidance for employers and workers in the healthcare industry, including recommendations for implementation of standard, contact, and airborne precautions (including wearing gowns, gloves, NIOSH certified disposable N95 or better respirators, and eye/face protection). Overall, OSHA says that all workers who may be exposed should do the following:
In addition, OSHA has issued specific guidance for employers and workers in the following industries: healthcare workers, clinical laboratory workers, airline workers, border protection workers, and waste management workers. Finally, OSHA refers US business travelers to the CDC’s Travel Notice.
President Donald Trump has declared a public health emergency over the COVID-19. As of the date of this publication, nearly 200 Americans are now subject to a mandatory quarantine upon returning to the United States from China's Hubei province – the first such government quarantine order in more than 50 years. However, the Administration is being careful to downplay the threat of the virus to Americans, as the infection rate and risk of infection remains low.
On January 27, the CDC issued updated travel guidance for China, recommending that travelers avoid all nonessential travel to the country.
On January 31, Alex Azar, Secretary of Health and Human Services and Chairman of the President’s Task Force on the Novel Coronavirus, declared that COVID-19 presented a public health emergency in the United States. The following measures are now in effect:
The 11 designated airports that are under this notice include the following:
CDC and the US Customs and Border Protection (CBP) are implementing enhanced health screenings to detect travelers with fever, cough, or difficulty breathing when entering the United States. The screening procedures include the following:
If the traveler does not have symptoms, CDC staff will provide health information cards to take with them. The cards tell travelers what symptoms to look out for, and what to do if they develop symptoms within 14 days after leaving China.
Employers must respect workers’ privacy—and, particularly, the confidentiality of their medical information pursuant to the Americans with Disabilities Act (ADA)—and they must comply with rules and guidance from OSHA, the CDC, the EEOC, and other agencies. Employers should balance their need to ensure workplace safety with their obligation to avoid unnecessary or overbroad medical inquiries, which are prohibited by the ADA. Of course, if an employee is exhibiting symptoms of COVID-19, it is appropriate to urge him or her to see a doctor. However, the decision to send an employee for a medical exam or to request medical documentation should be based on objective information, not unfounded fears that may or may not be grounded in reality. As an example, it could be risky to request medical information simply because an employee visited China. Employers should look to CDC guidance to determine what inquiries are appropriate to make.
Employers should also take caution and consult legal counsel before they send home an employee suspected of COVID-19 exposure or tell an employee not to come to work. The decision to remove an employee from the workplace for medical reasons must be based on objective belief that the employee may present a direct threat or significant, imminent harm to himself or herself or others. These decisions should not be based on rumor or unfounded concerns. CDC guidance should be consulted, as that agency has announced guidance to those who are sick with COVID-19. Among other recommendations, CDC guidance provides that persons who come down with this virus should not go to work, school, or public areas (and should consult their personal medical provider).
To address these issues, employers should train human resources employees about the CDC guidance so they can understand the medical and scientific realities of COVID-19 exposure and, therefore, be prepared to respond appropriately if employees express concern about a coworker believed to be at risk for COVID-19 exposure.
Finally, employers should take all necessary steps to ensure that employees who are (or who are perceived to be) from regions impacted by COVID-19 do not experience discrimination or harassment based on race, national origin, or any perceived medical condition, as such treatment may violate Title VII, the ADA, or similar state and local laws.
The Office for Civil Rights (OCR) at the US Department of Health and Human Services (HHS) issued a Bulletin on February 3, addressing the COVID-19 outbreak. This bulletin serves as a reminder as to how a HIPAA Covered Entity (group health plan or healthcare provider) and its Business Associate (service provider) can use and disclose a participant’s or patient’s protected health information (PHI) as balanced against the privacy and confidentiality measures demanded under HIPAA. HIPAA protects an individual’s PHI, which includes, for example, medical, demographic, and other identifying information. The bulletin notes that while HIPAA protects the privacy of PHI, it does not preclude the use and disclosure of the minimum necessary amount of PHI when necessary to treat a patient, to protect the nation’s public health, or to prevent a serious and imminent threat to the health and safety of a person or the public. These are longstanding exceptions to the use and disclosure of PHI under HIPAA. Covered Entities should review their policies and procedures and train their Privacy Employees—workers who act on behalf of the Covered Entity—to continue to protect an individual’s PHI as balanced against these exceptions under HIPAA. Before disclosing any PHI, Covered Entities should exercise caution and consult with legal counsel to confirm that a use or disclosure will not constitute a HIPAA violation.
The US Department of State announced a “Level 4: Do Not Travel” Advisory for travel to China. According to the advisory, those currently in China should consider leaving the country using commercial means. The State Department has requested that all non-essential US government personnel defer travel to China in light of COVID-19.
The Immigration and Nationality Act says that a foreign national is inadmissible if the person is determined to have a communicable disease of public health significance. 8 USC § 1182(a)(1). And infection with COVID-19 is a matter of public health significance.
Individuals abroad who are applying for a visa to travel to the United States—and who a consular officer suspects may be contagious—should expect to be referred to a panel physician selected by the embassy or consulate to conduct medical examinations of individuals applying for a visa.
At this time, foreign nationals who have visited China recently are temporarily barred from entering the United States, with the exception of immediate relatives of US citizens and permanent residents.
Individuals in transit to the United States who fall ill—or who are determined to be ill by aircraft or vessel crew—should be reported by crewmembers to US public health and immigration officials at the port of arrival so that their health situation can be assessed immediately upon arrival. Regulations permit authorities to place the individual in quarantine or isolation.
As noted above, the CDC and the Trump Administration are being careful about how they characterize the virus in the United States. While many are concerned about its spread, the science shows that other diseases, such as measles, spread much more rapidly and can be equally as virulent as COVID-19.
The key that many health officials tout is the need for all individuals to ensure they are up to date on their vaccines, especially the flu vaccine. Many health officials are concerned with contributing to a sense of panic, when the influenza in the United States is impacting a far larger number of Americans. That said, however, healthcare institutions are poised to address any outbreak of the virus in the United States. Further, US officials do have a role to play in helping combat the virus internationally, with vaccines that may be deployed to help in China and around the world. Congress will be holding hearings with officials from the CDC and other health and human services agencies to determine how best to export our intellectual aid and to work with the WHO and others to support the efforts of China to treat and contain the current outbreak.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
K. Lesli Ligorner
Susan Feigin Harris
Michelle Seldin Silverman