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By Christina Pici, Staff Writer
The coronavirus, COVID-19, has sparked concerns of individuals across the globe with cases arising in almost every region, including Africa, the Americas, the Eastern Mediterranean, Europe, South-East Asia, and the Western Pacific. [1] The number of cases has grown to exceed 40,000 and the World Health Organization has declared the virus a “public health emergency of international concern.” [2] As with any international emergency or crisis, the spread of the coronavirus carries with it many legal implications and concerns. One of those concerns is the spread of this virus and the duty of employers to ensure adequate safety of their employees.
Generally, all employers owe a duty of care to their employees. [3] Duty of care is the specific obligation or level of responsibility that applies in every situation from one person or entity toward another person or entity. [4] In the context of employment law, an employer’s duty of care in the workplace includes all responsibilities relating to health and safety, harassment, and stress.[5] This duty of care concept is standardized through the Occupational Safety and Health Act (OSHA) of 1970. [6] Under 29 U.S.C. § 654, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” [7]
Given that employers have a legal obligation under OSHA to ensure a safe workplace, employers need to take steps to guard against the risk of infectious diseases, such as the coronavirus. The outbreak of this new virus should prompt employers to implement a strategy to protect employees. [8] In addition, evidence that an employer was proactive regarding employee safety, especially in a time of an international virus outbreak, can help the employer in the long-run to avoid legal liability for any problems that may arise. [9] Employers who come up with a plan detailing steps for how employers and managers can protect against an outbreak at work is one way an employer can mitigate any potential damages. [10] Another way an employer can mitigate its damages is by doing a risk assessment analysis, taking into consideration all relevant issues that may be caused by this outbreak. [11] For example, some employers may have employees who require quarantine in the event they have recently traveled to a heavily exposed area. [12] “During any quarantine period, employers should generally expect to continue to pay the employee their ordinary wages and contractual benefits provided the employees are otherwise ready and willing to work.” [13] However, employers and employees alike should consult their individual employment contracts for further information on retention of wages, paid leave, etc. to see if there is a clause relevant to this type of event that outlines the particular protections provided under the contract. [14]
Another major issue in the employment sector regarding employee safety protocol is medical screening. [15] Under the Americans with Disabilities Act (ADA) of 1990, the prohibition against discrimination includes medical examinations and inquiries. [16] An employer can require medical testing if the exam is job-related, per business necessity, or if the employee reasonably poses a direct threat to health or safety. [17] Therefore, an employer can require an employee who has recently traveled from an affected area or that exhibits symptoms to present a doctor’s note certifying the employee is fit to return to work. [18] However, all employers should administer these medical screenings in a non-discriminatory fashion and should take careful measure in executing documentation with adequate reasoning for screening a particular employee. [19] This documentation is another way in which an employer can limit liability because it could show the employer was reasonably exercising its duty of care to all employees rather than singling out any particular employee with a discriminatory or harassing purpose. [20]
As the coronavirus progresses, with more cases likely to arise internationally and in the United States, all employers should be aware of the legal implications this outbreak has on business and managing a workforce. Employers are charged with a duty of care over their employees in maintaining a safe workplace by federal regulation. In the event an employer fails to exercise a reasonable degree of care over its employees in protecting against the coronavirus, it may be subject to legal liability.
[1] https://www.cdc.gov/coronavirus/2019-ncov/locations-confirmed-cases.html
[2] https://www.dlapiper.com/en/us/insights/publications/2020/02/key-employment-legal-issues-for-multinational-employers/
[3] https://www.healthassured.org/blog/employer-duty-of-care/
[4] Id.
[5] Id.
[6] https://www.osha.gov/aboutosha
[7] https://www.law.cornell.edu/uscode/text/29/654
[8] https://www.dlapiper.com/en/us/insights/publications/2020/02/key-employment-legal-issues-for-multinational-employers/
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] https://www.law.com/2020/02/26/coronavirus-employment-law-and-you-292-62259/?slreturn=20200203134003
[16] https://www.ada.gov/pubs/adastatute08.htm#12112d
[17] Id.
[18] Id.
[19] https://www.law.com/2020/02/26/coronavirus-employment-law-and-you-292-62259/?slreturn=20200203134003
[20] Id.
