Virus concerns implicate employee rights and ­confidentiality

Barbara L. Jones, BridgeTower Media Newswires

It may not be long before companies and their lawyers have to consider how COVID-19, known as the coronavirus, affects their employees and their business.

With the virus mostly outside the country so far, there is a limited amount of guidance from the Center for Disease Control or the Occupational Safety and Health Administration to date, but the OSHA office in California has issued some interim guidance. However, the epidemic may also touch on employer obligations such as employee privacy and the Americans with Disabilities Act. That was the message from Nicole Truso at Faegre Drinker Biddle and Reath in a Feb. 24 webcast.

The potential conflict for employers is to advise employees of the risks of exposure to the virus if there is a confirmed case in the workplace and at the same time maintain the confidentiality of medical information, Truso said.

Other legal risks arise if the employers make assumptions about the employee based on race, national origin or disability, she said. Employers must be careful not to jump to any conclusions based on national origin or ties to an affected region. Everyone should be treated the same and questions should be asked of employees consistently to avoid the risk of discrimination. Employers can be well-intentioned and meaning to assist the employee and end up discriminating, Truso said.

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Americans with Disabilities Act

Generally, the ADA applies in situations where an employee needs accommodation over a longer period of time than a viral illness. But discussion of the viral illness may result in reference to other conditions or disabilities, Truso said. Questions that are likely to solicit information about a disability include about medical information, diagnosis and medication. Asking a family member for medical information is also problematic, and requiring medical examinations may also lead to undesirable results, she said. A disability-related inquiry or medical examination must be job related and consistent with business necessity, she explained.

The employer also must have a reasonable belief and objective evidence that the employee’s ability to perform essential functions of the job will be impaired by a medical condition or the employee will pose a direct threat to self or others due to a medical condition. The ADA also requires any employee medical information to be kept confidential, including information related to disability-related inquiries and medical examinations.

Occupational Safety and Health Administration

OSHA’s web page states that “There is no evidence of widespread transmission of COVID-19 in the United States at this time. Without sustained human-to-human transmission, most American workers are not at significant risk of infection.” Exceptions include workers who interact with potentially infected travelers from abroad.

OSHA’s General Duty Clause requires employers to furnish to each worker “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.” 29 U.S.C. 654(a)(1)

The law also requires employers to provide gloves, eye and face protection and respiratory protection when necessary.

Employees also have the right to receive information and training about workplace hazards and to be free from retaliation for exercising those rights.

The California OSHA department has issued interim guidance and provides that its Aerosol Transmissible Diseases standard covers COVID-19. The standard in certain situations requires written ATD exposure control plan and procedures, training, engineering and work practice controls, personal protective equipment, medical services including vaccination and infection determination and treatment and laboratory operation requirements.

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Travel

Employers should tread carefully when deciding to require an employee to travel to a country with heightened travel warnings, Truso said. In CLE materials, she advised that “[I]t is the employer’s responsibility to weigh carefully [an] employee’s concerns, the risk of actual exposure and the business needs to determine whether an accommodation is possible, such as video conferencing or rescheduling the trip.” If employees do travel, employers should provide as much support as possible.

To avoid violating any antidiscrimination laws, Truso said in her materials, An employee who has traveled should not be required to work from home upon returning unless the employer has a reasonable objective belief that the employee presents a danger to the workplace.

“Questioning employees about their personal travel raises issues of privacy and the potential for actual or perceived discriminatory treatment,” Truso also said. “Generally speaking, the better approach is to let all employees know that the company is monitoring the situation and taking appropriate precautions, and to provide a point person for questions related to coronavirus risk avoidance,” she continued.