Employers confronting legal issues surrounding coronavirus

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As the novel coronavirus (2019-nCoV ) continues to present an international health threat, S.C. companies who do business internationally should be aware of employment laws regarding health concerns, legal advisors say.

If your job, or your employees, require international travel, attorneys at Ogletree, Deakins, Nash, Smoak & Stewart, a national employment law firm with offices in South Carolina, recommend consistently checking the Centers for Disease Control and State Department websites for coronavirus updates. Information changes daily.

“If they travel to China now, they need to be sure that they can get into the country, and when they’re returning, they may want to be aware that they’re going to be routed to one of 11 airports and have a check when they come through as to their health, and be asked some questions,” said Kathy Dudley Helms, a shareholder in the Columbia office.

Travelers returning to the U.S. from China’s Hubei Province, the epicenter of the outbreak, will be quarantined for 14 days under new federal guidelines.

“We’ve talked with a lot of clients about … looking at essential travel, and perhaps, rescheduling other (travel),” Helms said.

Coronaviruses are a family of viruses that cause respiratory infections ranging from the common cold to pneumonia. In a Jan. 29 statement, the S.C. Department of Health and Environmental Control said no novel coronavirus cases have been identified in South Carolina. DHEC said it was closely monitoring the state for potential cases and joined the CDC in recommending avoiding all nonessential travel to China.

“Outbreaks of novel virus infections are public health concerns,” the DHEC statement said. “The possible risk of 2019-nCoV infections in South Carolina depends on multiple factors, including the likelihood of travelers from affected areas, how easily the virus may spread from person to person, and others of which are still unknown with 2019-nCoV." 

Helms said other legal issues employers should consider if employees are traveling overseas include provisions of the Americans with Disabilities Act and Occupational Health and Safety Administration regulations. Many of the statutes employers are already familiar with could apply to employee travel to high-risk coronavirus areas.

Helms said are other legal issues employers should consider if their employees are traveling overseas, including the Americans with Disabilities Act and regulations under the Occupational Health and Safety Administration, which has information regarding Coronavirus on its website. Many of the statutes employers are already familiar with could apply to employee travel to high-risk coronavirus areas.

“The Americans with Disabilities Act could potentially offer protection to an employee who has a disability or medical condition that may put them at a higher risk of performing their job or traveling,” said Ogletree Deakins shareholder Michael Eckard of the Charleston office. “Those types of things need to be considered on an individual basis, and we would recommend a consultation with the company’s human resources and legal professionals.”

Employers should remember that the ADA includes confidentiality provisions, even if disability is not the issue. Medical information must be kept separate from employment information, and employers may be limited in what medical information they can request about an employee. Employees have a right to know if there is a health risk in the workplace, but they do not have a right to know what individual is at risk or if a person has symptoms, legal experts say.

Helms and Eckard say they have been contacted by concerned employers who are uncertain how to handle coronavirus issues.

“Many employers are being faced with workers or employees who are returning from travel to China, for business or personal reasons, and they’re working through with those employees how to properly handle their return to work while at the same time not running afoul of any legal protections that employees may have,” Eckard said.

Both Eckard and Helms have experience dealing with health care issues, having worked with teams who responded to the Ebola virus and H1N1 pandemic. They encourage employers to review plans they developed for those outbreaks and apply them to coronavirus. If your company doesn’t have a pandemic plan, they say, establish one. If you have a plan, make sure it’s up to date.

“There are similar issues in each of these instances,” Helms said. “Health care entities, particularly, have to think well ahead of time because they may have to have employees who work much longer hours if the outbreak actually hits here. They may have significant staffing issues. And so they may have to plan well ahead of time.”

The attorneys also warn employers not to discriminate based on national origin.

“A good number of those who might be returning to the United States from that area are likely to be of Chinese descent. So you have to be really, really careful about selecting out people because of their national origin,” Helms said. “There are very valid reasons to ask questions and be concerned if someone has traveled to this area, but that’s the basis for any concern, not their national origin. Employers and people in the workplace need to be cognizant of that.”

Workplace discrimination based on national origin is prohibited by federal law. In response to the novel coronavirus outbreak, the CDC issued this instruction: “Do not show prejudice to people of Asian descent because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have 2019-nCoV.”