In early January, when reports began circulating that a new virus, the coronavirus, had been identified causing pneumonia-like symptoms, alarms were muted as scientists believed that it could not spread from person to person. By mid-January, it was clear that the virus was moving between people.
The death toll has passed 1000. Cases have spread to 28 countries. Twelve people in the US have tested positive; and individuals in 37 states are undergoing investigation. The novel coronavirus, officially COVID-19, has become a global health emergency. Employers are not immune from concern as they evaluate how best to prepare and respond to this developing situation.
The following guidance highlights key questions and considerations that businesses must evaluate in response to this public health concern.
Coronavirus Transmission and Prevention
Experts now believe that the coronavirus is spread similarly to the cold or flu: when an infected person coughs and sneezes. Accordingly, businesses should encourage employees to follow the CDC’s guidelines on prevention, which are similar to those for other respiratory viruses, and include:
- frequent and thorough hand washing,
- avoiding close contact with those who are sick,
- staying home if you are sick, and
- avoid touching your eyes, nose, and mouth.
Employers should share these guidelines as part of an employee-wide communication on the novel coronavirus; as well as placing posters throughout the workplace encouraging good respiratory etiquette and hand hygiene.
In line with the CDC’s interim guidance, employers should also utilize the following strategies preventatively.
- Actively encourage ill employees to stay home, taking sick days as needed, or working-from-home when appropriate and where feasible.
- Employees who appear sick with symptoms of acute respiratory illness should be separated and sent home.
- Employers should continue to perform routine cleaning of surfaces; and maintain good indoor ventilation.
- Employers should confirm that there are sufficient supplies of gloves, thermometers, disinfectants, and other items.
Where employers have work-from-home policies and capabilities, they may consider requesting that employees returning from China work-from-home for a limited period. The CDC is currently using a 14-day quarantine method and some employers have chosen a similar time period for recent returnees.
Not all obligations will fall on the business when healthcare providers become involved. A healthcare provider is required to notify infection control personnel at their facility as well their local and state healthcare departments if they suspect someone has been exposed to COVID-19; and may require various levels of quarantine for such patients. HIPAA guidelines dictate when providers can share information about patients to others, including employers. For example, healthcare providers can share patient information when necessary to prevent or lessen a serious and imminent threat.
Employment Law Issues
Consultation with HR and employment counsel is recommended before implementation of any recommendations. A number of different federal laws and regulations, as well as state and local counterparts, may be applicable, including the ADA, GINA, NLRA, FMLA, HIPAA, OSHA, and various defamation and privacy laws.
To start the conversation with employment counsel, here are some questions to ask:
- How can the company ensure the confidentiality and privacy of an employee suspected of being infected?
- Can customers and employees be screened before entering the office? Can customers and employees be prohibited from entering if they have any signs or symptoms of an acute respiratory illness?
- Can the company direct employees to go home, stay home, go to a different office, or otherwise quarantine them?
- Can the company require an employee to see a doctor? What action can the company take if the employee refuses? Can the company require that the employee share whether they are infected?
- Can the company directly report or require that the employee report any suspected workplace exposure to coronavirus?
- Can an employee refuse to work if there is a suspected virus outbreak?
- How should the company address heightened risks around race, ethnicity, and national origin discrimination?
OSHA recently released coronavirus-specific guidance, and generally requires that companies ensure a safe workplace, such as by requiring personal protective equipment where necessary to prevent employees from being exposed to environmental hazards.
Notably, OSHA considers an employee infected with the coronavirus a recordable injury that must be indicated on an employer’s OSHA 300 log. An employee who is exposed but who never displays symptoms, or an employee exposed outside of work (and not at work) who becomes sick need not be included in the log. Any recordable injury should trigger a review of applicable workers’ compensation policies for coverage.
- Having written exposure control plans and procedures in place;
- Implementing comprehensive and effective training as to 2019-nCoV; and,
- Minimizing workplace exposure to airborne diseases and identifying suspected cases.
Though these standards are only required for certain covered employers (such as hospitals, laboratories, airport workers), they serve as blueprint that employers can reference for what they should do to keep their employees safe.
Where international employers have locations in China that are currently impacted by the outbreak, they should review their insurance policies to understand what, if any coverage, would be available in the event of a site shutdown due to a viral outbreak. While business interruption does not typically provide coverage in an outbreak (as the damage must usually be physical to trigger cover), some policies do provide communicable disease response coverage on a sub-limited basis.
Travel and Immigration
Just as quickly as the word of contagion spread through the news media, various state and global health apparatus jumped into action to stop the spread of the disease to their borders. WHO declared a Public Health Emergency of International Concern. HHS declared a public health emergency. The State Department issued a Do Not Travel Advisory for China. The CDC similarly issued a warning on travel to mainland China. The President issued a proclamation prohibiting entry of visitors and immigrants from China. Nearly all commercial airlines have suspended or reduced routes to and from China. Travel within China, especially Wuhan and greater Hubei province, remains extremely limited as Chinese officials have severely restricted all travel in efforts to contain the spread of the virus. The US Embassies and Consulates in China recently suspended their services.
As travel to and from China becomes increasingly difficult, employers should consider taking the following steps:
- Determine whether to suspend all non-essential travel to China, and what additional support to provide where higher risk travel is required (and feasible). For example, travelers may require seating upgrades to minimize contact with other passengers and lower their risk profile.
- Avoid requiring employees to travel who express any concerns.
- Remind employees of the contacts, resources, and insurance available to employees who are required to travel to higher risk areas.
- Recognize that travel may be interrupted.
- Employees who are traveling should know and be on the lookout for symptoms of acute respiratory illness, and understand how to conduct their own travel risk self-assessment.
- Encourage the use of teleconferencing and videoconferencing to minimize the need for in-person meetings.
- Offer short-term and long-term relocation options to expatriates on assignment in China and support requests to leave the country.
- Confer with immigration counsel to determine what risks an employee who is restricted from temporarily returning may be face. For example, a green card holder may need to take several steps to “maintain their ties” to the US if they have been outside of the country for an extended period of time.
- Monitor State Department and CDC travel advisories in the event the disease spreads to other regions.
Business Insurance: Covering Coronavirus
Employers should review their workers’ compensation insurance policies to see what might respond in the event an employee is infected by a colleague or while traveling on business. Employers may wish to explore supplemental coverage options, such as business travel accident (BTA) policies, if their workers’ compensation policy doesn’t contemplate covering an employee who falls sick due to the viral illness in certain scenarios.
Employers should also confirm whether they can lose coverage for sending an employee to a State Department or CDC no-travel zone; as well as whether they open themselves up to allegations of recklessness or negligence.
In addition to their own medical insurance, an employee may also be covered by state and employer’s disability insurance.
Coronavirus and Cyber Risk
Kaspersky has identified various malicious files (pdf, mp4, and docx) associated with increasing attempts by cyber criminals to bait concerned individuals who are looking for guidance on COVID-19 prevention or news about its spread. While purporting to share valuable information, these files often contain malware, which could damage unsuspecting victim’s system and threaten an employer’s network.
Some of the files detected include those with the following names:
- UDS: DangerousObject.Multi.Generic
- HEUR: Trojan.WinLNK.Agent.gen
- HEUR: Trojan.PDF.Badur.b
Sample screenshots of such phishing attacks show how compelling such communications can seem to the unwary reader.
To protect against such attacks, employers should:
- Alert employees to the heightened risk around coronavirus guidance;
- Encourage employees to be cautious about all communications with links and to not open attachments from a suspicious or unknown email address;
- Run a phishing test with a coronavirus-related template; and,
- Provide guidance on official sources of information about the coronavirus (such as the CDC, State Department, and WHO websites).
Employers should also review their cyber and crime insurance policies to understand their social engineering coverage in the event their systems are infected.
Businesses face a variety of challenges when trying to mitigate risk around public health issues, particularly viral outbreaks. Having an expert on your side can help you navigate these challenges.