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Coronavirus Prevention at Work May Clash With Bias Laws (1)

Jan. 30, 2020, 4:22 PMUpdated: Jan. 30, 2020, 8:11 PM

As the coronavirus continues to spread around the world, companies are taking steps to safeguard workers from the outbreak. Travel is limited. Temperature checks of workers are underway. Others are adopting “social distancing policies,” or a strong recommendation to work remotely.

Efforts aimed at preventing the virus from entering the workplace, however, could clash with disability discrimination and worker safety laws. This includes restrictions on medical exams, and asking workers about their condition under the Americans with Disabilities Act. Employers—particularly those that do business in China—should move with speed but be cautious to avoid legal pitfalls, attorneys warn.

The virus that originated in Wuhan, China, has sickened more than 8,000 people and killed at least 170, according to recent reports. Companies that do business in that part of the world are taking precautions. Apple Inc., which relies on a supply chain in China, became one of the first tech companies to discuss the impact of the outbreak. Facebook Inc. suspended nonessential travel and WeWork closed some locations. Volkswagen AG and Starbucks Corp. also made concessions for safety in response.

There are at least five confirmed coronavirus cases in the U.S., and employers fear that it could spread further.

“The big question that overlies everything is how severe will this get?” said Amesh Adalja, senior scholar at the Johns Hopkins University Center for Health Security. “People have died but the death rate isn’t going up that fast. We need to carefully watch and get more data from the outbreak in China. The individuals traveling to China should be monitored, that’s the main issue.”

Legal Pitfalls

Most U.S. workers aren’t at significant risk of infection, according to the Occupational Safety and Health Administration, but government officials are monitoring the situation and encouraging companies to stay abreast of updates. The agency warns workers in certain industries—health care, airline, waste management, border protection and business travelers—to take special precautions. The Centers for Disease Control and Prevention issued a warning to avoid nonessential travel to China.

Employers must reckon with the Occupational Safety and Health Act, which requires employers to provide a safe workplace, free from hazards. This could prompt them to consider options for employees who must travel to China for work, such as telework, and consider offering employees an alternative to traveling to an affected area.

Employers must balance protecting their workplace with avoiding violating privacy and disability discrimination laws. Actions they can take depend on the risk they face.

“The level of direct threat depends on the severity of the illness,” said Proskauer Rose partner Evandro Gigante. “It could create more of a risk if any action taken is not backed up by the relevant authorities.”

Companies must be careful when requesting information from an employee who calls in sick, at what time body temperatures can be taken during pandemics, and when deciding whether to require employees to stay home if they have symptoms, according to the Equal Employment Opportunity Commission’s pandemic preparedness guide. The agency issued the guidance in 2009 during the H1N1 influenza outbreak.

The agency said there have been four influenza pandemics in the last century: The deadly “Spanish flu” of 1918 was followed by the milder “Asian” and “Hong Kong” flu epidemics in the 1950s and 1960s. The SARS outbreak in 2003 was considered a pandemic “scare,” but the H1N1, or the swine flu, rose to the level of a pandemic.

Businesses also must navigate and be aware of all sick and paid leave policies in the states, said Vanessa Matsis-McCready, assistant general counsel at Engage PEO, which advises companies on HR solutions.

She said many companies are encouraging anyone at risk to take time off or work from home, calling it a “social distancing policy.” Singling out individuals isn’t advisable, and employers must respect an employee’s confidentiality, she said.

Potential Disability Bias Murky

Murky legal questions surround whether an employer can fire or refuse to hire a worker who has the potential to carry the virus.

The EEOC argues that a worker doesn’t have to have a current physiological disorder to be protected under the ADA. However, at least five federal appeals courts have confronted this issue and ruled for the employers, providing latitude in hiring and firing of workers for potential disabilities.

That includes a U.S. Court of Appeals for the Eleventh Circuit decision in a case brought by the EEOC against STME LLC, a company that owned a Massage Envy location in Florida. The appeals court in September ruled that the agency couldn’t press disability bias claims on behalf of a massage therapist who was fired for refusing to cancel a trip to Ghana because her employer feared she would contract the rare but deadly Ebola virus. Likewise, the court ruled that the ADA doesn’t protect against discrimination based on the perception of a potential future disability.

In the Massage Envy case, the EEOC said its position is that ADA’s protections apply to the worker because of a provision prohibiting discrimination based on a worker’s association with an individual with a disability. That would include situations such as an employer firing someone who did volunteer work for people with AIDS, and that adverse action was motivated by that relationship.

“Employers just need to be wary of overreacting. Unless you’re a hospital, none of us are doctors, don’t give medical opinions. Just pay attention to what the public health officials are saying,” said Carol Miaskoff, associate legal counsel at the EEOC. “The way to address this proactively is to focus on the facts. Treat people evenhandedly and don’t take any rash actions out of fear. If you do that you won’t be in the position of taking an adverse employment action on someone who isn’t sick.”

‘Don’t Panic’

The number of new coronavirus cases is small so employers shouldn’t overreact, said Jon Hyman, a partner with Meyers, Roman, Friedberg & Lewis in Ohio. He said employers should focus on keeping leave policies updated and accommodate anyone who has been exposed.

“The first thing I’ll say to employers is, ‘Don’t panic,’” Hyman said.

He warned against medical tests for all workers, which could violate the ADA. The bar is high to prove a job-related necessity for those, he said, adding that singling out employees because of their ethnicity could lead to discrimination charges.

Employers with policies that encourage sick employees to come to work could violate OSHA regulations, Hyman said.

Communication is key for employers to reinforce sick leave policies, but the official details about the virus should come from government officials, said Emma Follansbee, an attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Policies should be enforced in a uniform and consistent way, including accommodating employees but also not targeting job duties or certain employees in violation of discrimination laws. This all requires knowing the level of the risk, she said.

“We understand the scare, but they shouldn’t be acting out of a place of fear. If you have an employer who is deciding who to send home or not, on what basis are you making that?” Follansbee said. For context, in the U.S., there are 15 million cases of the flu this year and more than 8,000 deaths. Pushing a quarantine or medical exam that could violate disability laws should only be taken if it’s a direct threat to the workplace, she said.

“Those are extreme measures we are discouraging right now,” Follansbee said.

(The story was updated with a comment from an associate legal counsel with the EEOC.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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