The World Health Organization (WHO) has now declared the current outbreak of the new coronavirus first identified in Wuhan, Hubei Province, China as a “Public Health Emergency of International Concern.” As more countries announce quarantine measures for travelers returning from Wuhan, businesses need to ensure that they are prepared to deal with the impact of the coronavirus in the workplace. In this alert, we share our recommendations for employers and answer some of the questions that businesses are likely to be asking.
Generally speaking, employers must balance the obligation to ensure a healthy and safe working environment with their other legal obligations towards employees such as privacy and anti-discrimination legislation in the EU and rest of the world (including, in the United States, obligations under the Americans with Disabilities Act (ADA)).
Early-stage coronavirus symptoms appear to share similarities with a common cold. There is a risk of overreaction, severe business disruption and financial cost if employers apply a blanket policy requiring all employees with those types of symptoms to stay home. Employers should assess the risk on a case-by-case basis, and encourage employees displaying symptoms to seek and follow professional medical advice, in line with the employer’s usual practice for sickness absence reporting.
Note that in the United States, if the current outbreak is declared a pandemic by the WHO or the CDC, the U.S. Equal Employment Opportunity Commission suggests that requiring employees who show symptoms to stay home would be permitted under the ADA. Given that the current outbreak has not (yet) been officially declared a pandemic, however, employers should consider this guidance with caution.
Given that (i) the incubation period of the coronavirus is currently understood to be between two and 14 days and (ii) there are reports that the virus can be transmitted to others even before an infected person displays symptoms, employers are potentially justified in asking any employees who recently returned from an infected area to work from home for at least the length of the incubation period. Employers should check their policies and contractual provisions regarding home working, explain the position to the employee carefully, and ensure that measures are put in place to facilitate any requirement to work at home. Where an employee’s role is not suitable for home working, employers should consider providing paid leave for the employee during the incubation period.
Privacy laws in most jurisdictions (including throughout the EU and the UK) restrict an employer’s ability to request health-related data. For example, in the EU, employers must always consider the requirements of the General Data Protection Regulation (GDPR) when seeking health data from employees. This would include identifying a lawful basis (under Article 6) for doing so as well as a separate condition applicable to health data (under Article 9). Likewise, in the United States, the ADA and similar state laws limit medical inquiries by employers if doing so may reveal someone’s disability. Given these limitations, employers should only consider asking employees to provide health data in line with their usual compliance practices or as a method of last resort or where there are specific concerns (e.g., where an employee was previously diagnosed with, or in close contact with, the coronavirus wishes to return to work).
Regardless of location, employers must balance the need to maintain a safe and healthy workplace against the privacy rights of individual employees and the potential risks of overreaction. Furthermore, even after this outbreak is contained, employers should ensure that they have adequate policies in place to deal with similar events in the future.
The authors thank their colleagues Wataru Shimizu, Amber Shubin, Yuki Terazawa, Miriam Wugmeister, and Tom Macintosh Zheng for their contributions to this article.
Author David Newman served as Chief of Staff to the Office of Ebola Response during his time on the National Security Council staff.