Corona Virus Outbreak – What Employers Need to Know Workers’ comp benefits paid via medical chart reviews may be relevant in the case of workers affected by the corona virus.
Employers have an obligation to provide a safe workplace to their employees under the Workers’ Compensation Act and the Occupational Health and Safety Regulation. Employees injured or taken ill at the workplace are compensated to cover for medical treatment and lost wages, the eligibility for the compensation being determined based on medical chart reviews. Now, the Novel Coronavirus (2019-nCoV) outbreak in China is becoming a global health concern, requiring employers to take adequate preventive measures and also provide the proper instructions to their employees. Coronavirus outbreak is considered a huge threat because of the possibility of human-to-human transmission, especially in the workplace. Though the OSHA www.mosmedicalrecordreview.com
918-221-7791
(Occupational Safety and Health Administration) says that most American workers are not at significant risk of infection at this time, the situation is worsening and employers need to consider how they can address the situation, help prevent an outbreak, or deal with one in case there is an outbreak. Besides, employers must also be guarded against the legal risks involved when attempting to protect their workers from the virus. OSHA considers an employee infected with the coronavirus as a recordable injury which is to be indicated on the employer’s OSHA 300 log. An article in natlawreview.com by Michael T. Taylor, Genus Heidary, and Adam Roseman discusses the issue of employer obligation in the wake of coronavirus outbreak. They point out that if the employer has no basis to believe that their employees are at risk of exposure to the virus, the OSHA does not impose any affirmative duties on an employer to engage in prevention or abatement efforts. But if the employer has reason to believe that their employees are at risk of exposure to the virus, or if the employees work in a high-risk industry for exposure such as healthcare, airline, waste management, border protection, and so on, employers must surely consult and follow the recommendations made by the CDC (Centers for Disease Control and Prevention) regarding prevention and exposure. What are the obligations an employer has in the wake of this new virus outbreak? Employers and employees are both responsible for ensuring the safety of their workplace. OSHA has issued guidelines to follow in the present context of the coronavirus outbreak. Though there is no specific OSHA standard covering the new coronavirus, some OSHA requirements may apply to preventing occupational exposure to the virus. ▪
OSHA’s PPE (Persona Protective Equipment) standards that require using gloves, eye and face protection, and respiratory protection.
▪
The General Duty Clause that 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.
▪
Employers must protect their workers from exposure to chemicals used for cleaning and disinfection. Common sanitizers and sterilizers could contain
www.mosmedicalrecordreview.com
918-221-7791
dangerous chemicals. In spaces where employees are exposed to hazardous chemicals, employers must comply with OSHA’s Hazard Communication standard and other applicable OSHA standards. What about the legal considerations? Legal experts point out that an employee with coronavirus infection may be protected under the ADA (Americans with Disabilities Act) because he/she could fall within the definition of a “qualified individual with a disability.” A person exposed to the virus or is believed to be exposed (via travel to countries with identified virus infection), could present ADA claims under the theory that the employee was “regarded as” having the illness. The employer cannot make medical inquiries of employees unless the inquiry is voluntary, job-related, and consistent with business necessity. In case such queries are made, the employer is required to follow the ADA guidelines related to medical records. According to these guidelines, employers must maintain the medical information confidentially. This information must be kept separate and apart from the worker’s personal file. Employers should also restrict the distribution of such medical data to individuals with a legitimate need to know. ▪
If the worker poses a direct threat to the health or safety of others as well as that of their own, the employer can require the worker to reveal health information.
▪
The employer may be allowed to require an employee to undergo medical testing if the employer reasonably believes, on the basis of an individual evaluation, that the employee may have been exposed to the virus.
▪
If a worker is diagnosed with coronavirus, it would constitute a serious health concern under the FMLA (Family and Medical Leave Act). Such an employee would be entitled to FMLA.
The ADA also requires places of public accommodation to provide the full range of their activities and services to people with disabilities, under its Title III. So, if the place of employment is a place of public accommodation as well such as hotels, restaurants, retail stores and so on, the employer must carefully consider whether to implement policies that could lead to guests/customers from China and others
www.mosmedicalrecordreview.com
918-221-7791
who may have been exposed to the virus, being subject to limitations or restrictions. Employees who believe that a condition in the workplace could compromise or endanger their health or safety can refuse to work under relevant OSHA legislation. If employers receive a coronavirus-related refusal to work, they must comply with their obligations under applicable OSHA legislation. What about employee wages? ▪
An employee working for the employer while staying out of the office or facility due to a reasonable belief that he/she has been exposed to or has contracted the coronavirus must be paid.
▪
An exempt employee must be paid for the entire week during which he/she performs more than a de minimis amount of work.
▪
A non-exempt employee must be paid for the time that he or she works.
▪
Depending on the employer’s policy and/or state law, the worker could be entitled to paid sick time or other paid leave such as personal days and vacation.
How to prepare for the emergency? To ensure that their organization is prepared to meet the emergency situation created by coronavirus infection, employers can consider the following. ▪
Place educational posters in important areas of the office and provide hand gels, tissues etc.
▪
Review internal and external means of communication. This is vital to keep everyone in the know of things, reduce anxiety, and continue business functions flawlessly.
▪
Take note of current human resources, procedures, and policies with regard to communicable disease management.
▪
Have a single person/department handle all coronavirus-related questions and concerns.
www.mosmedicalrecordreview.com
918-221-7791
▪
Ensure that supervisors are educated on the company’s proposed preventative steps.
▪
Consider whether additional obligations are imposed on the organization by OSHA or HIPAA’s Privacy Rule.
With the panic spread by the novel coronavirus, employers are overly concerned about associated health and safety issues. Information regarding the virus is being updated every day and employers, workers’ compensation attorneys, medical record retrieval companies supporting the workers’ compensation system, employees and others must continue to refer to the websites of CDC, OSHA, and WHO for information on the proper precautions, including travel advisories.
www.mosmedicalrecordreview.com
918-221-7791