Coronavirus: a bacteria-ridden beer bottle with a lime? No. Pandemic? Not quite.[1] A serious health concern that potentially presents issues to employers across the country? Yes.
The sinister virus spreading pandemonium across the world is somewhat similar to SARS (Severe Acute Respiratory Syndrome) but not exactly the same. Coronaviruses are a large family of viruses, some causing illness in people and others that circulate among animals, including camels, cats and bats. The specific name of the virus in the news is 2019-nCoV. It is not the same as the coronavirus that causes Middle East Respiratory Syndrome (MERS) or the coronavirus that causes Severe Acute Respiratory Syndrome (SARS). However, genetic analyses suggest this virus emerged from a virus related to SARS.[2]
The 2019-nCoV coronavirus was first identified in Wuhan, Hubei Province, China.[3] According to the CDC, this virus most likely emerged from an animal source, but is now spreading from person-to-person. You have likely seen the pictures being circulated around social media showing food markets where the local citizens of Wuhan consume animals, such as bats and rodents.
Health officials believe that individuals can spread the disease before showing any symptoms and the incubation period appears to be approximately two weeks. At this point, the virus has been able to escape China and spread globally. Despite the mass hysteria and the fact that the death toll has exceeded the SARS outbreak from the early 2000’s, the more recent news has been at least somewhat encouraging, as the number of people who have recovered from the virus has continued to increase, suggesting that the mortality rate may be relatively high.[4] However, the virus is spreading more rapidly than the SARS virus did in the past.
There are numerous questions that arise as the virus continues to spread. Should employees that become ill as a result of the coronavirus be entitled to workers’ compensation benefits? What steps should employers take to deal with the coronavirus in the workplace?
Certain industries are obviously more susceptible than others with respect to employees being exposed to the virus. Individuals that work in hospitals, airports, and on airplanes and cruise ships are at higher risk of catching the virus, due to the fact that they come in contact with a high volume of people and in the case of healthcare workers, people that are sick.
In Pennsylvania, employees are not only eligible to receive workers' compensation benefits for work-related injuries but are also eligible for occupational illnesses. That being said, there is currently no case law or statutory law that addresses the potential compensability of a workers’ compensation claim for coronavirus. The issue in these cases will be whether or not the claimant is able to establish that the coronavirus was actually a result of his or her work.
The Pennsylvania Workers’ Compensation Act specifically addresses “occupational diseases” such as poisonings, cancer, black lung, tuberculosis and Hepatitis C, and there is a rebuttable presumption for diseases like Hepatitis C. Influenzas and colds are not explicitly included in this occupational disease category. However, diseases not specifically mentioned can be compensable if they meet the following criteria for determining whether a disease is occupationally related: (1) The employee is exposed to the disease by reason of his/her employment; (2) The disease is causally related to the employee's industry or occupation; (3) The occurrence of the disease is substantially greater in that industry or occupation than it is in the general population.
There may be a distinction between the regular flu, which is widespread and is something that the general public of the United States is regularly exposed to every year, and the coronavirus, which currently only has 15 confirmed cases in the United States. A claimant bringing a claim for the coronavirus in the United States will likely have an easier time proving that the virus came from a specific location and/or person. In a setting like a hospital or cruise ship, the claimant may have a viable claim if an infected patient was at a specific facility or location and the claimant can prove he or she was not at any other places where virus had been reported.
There are currently a number of cruise ships that have already been quarantined where this exact issue may arise, including the Royal Caribbean ship that was recently docked in Bayonne, New Jersey, amid concerns of the virus. Certain principles of general maritime law may apply to these situations depending on the facts of each case. For example, the Jones Act permits “seamen” (meaning the captain and the crew) who have been injured during the course of their employment to bring a personal injury action against their employer. The injured crewmember must prove negligence on the part of the owner, captain, and/or crew of the vessel and that their negligence was a cause of the injury. Even evidence of the “slightest” negligence is sufficient to sustain a finding of Jones Act liability. In other words, a crewmember will need to prove their injuries came about as a result of some act or omission on behalf of their employer that that was a proximate cause of their contracting the coronavirus. If the employees are able to meet their burden, they may be entitled to compensation for lost earnings, earning capacity, past and future medical expenses, pain and suffering, and mental anguish.
The doctrine of maintenance and cure also entitles crewmembers to certain health and lodging benefits if they are injured or fall ill during the course and scope of their seafaring employment. Similar to a workers’ compensation scheme, a seaman does not have to prove that his employer is at fault for causing his injuries or illness; it is enough that the symptoms manifest themselves during the employment. If so, the crewmember is entitled to “maintenance,” which is a per diem food and lodging allowance paid so long as the seaman is outside a hospital. The seaman’s employer is also obligated to provide medical treatment or “cure,” which is the payment of therapeutic, medical, and hospital expenses. Both of these benefits continue until the injured or ill seaman reaches the point of "maximum medical cure." An employer’s failure to reasonably and timely provide maintenance or cure may result in an award consisting of compensatory damages, attorneys’ fees, or even punitive damages.
In addition to cruise ships and airlines, healthcare workers in hospitals and doctor’s offices may also have viable claims for work-related coronavirus claims if they can prove they contracted the virus at the work facility. Moreover, as the virus is rarer in the United States at this point, does a health-care claimant have a similar presumption as firefighters, EMS personnel, state troopers, and correctional employees, that the virus is related to work?
In addition to potential workers’ compensation claims, there are also employment concerns associated with the virus. What if the employer hires or interacts with employees from China? How do employers reply to employees who are apprehensive about traveling outside the country? Should employers accommodate elderly employees or those with health problems that are at a higher risk of catching the virus? What about pregnant employees? What if an employee protests traveling for the simple reason of fearing he or she will end up catching the virus? The travel advisory currently in place by the US Department of State for travel to China is “Level 4: Do Not Travel.” However, this does not apply to other places, such as Singapore, that are currently experiencing surges in the amount of confirmed cases.
In addition to the above, do employers have the ability to require employees who have recently returned from China to stay away from the workplace for the incubation period? Moreover, do employers have the ability to implement screening or vaccination programs to individuals exhibiting symptoms or returning from high risk areas?
The Trump Administration has declared a public health emergency in response to the virus and announced that US citizens returning from certain parts of China, such as the Hubei province, would be quarantined for two weeks. These travelers will also be diverted to one of the following 11 airports: John F. Kennedy International Airport, Chicago O’Hare International Airport, San Francisco International Airport, Seattle-Tacoma International Airport, Daniel K. Inouye International Airport, Los Angeles International Airport, Hartsfield-Jackson Atlanta International Airport, Washington-Dulles International Airport, Newark Liberty International Airport, Dallas/Fort Worth International Airport, and Detroit Metropolitan Airport. If a traveler is returning from certain areas of China and is exhibiting symptoms of the virus, those individuals may be screened and subsequently quarantined. If the individual is returning from other areas of China and not exhibiting coronavirus symptoms, he or she will be re-routed to their intended destination and may be requested to quarantine on their own at home.
It does seem more likely that decisions to make employees returning back from different areas of China to remain at home for the incubation period will be viewed as reasonable. However, if an employer issues a policy stopping employees from coming to work, it still may run afoul of Title VII of the Civil Rights Act of 1964 depending on the facts of the specific case. There are also potential Americans with Disabilities Act (ADA) concerns, if the virus potentially restricts a major life activity. It is recommended that employers continue to stay abreast of the guidance provided by the CDC and the Department of Homeland.
Finally, there are also FMLA concerns when an employee is out of work for coronavirus-related reasons. The FMLA provides employees with up to 12 weeks of leave in a 12-month period for their own serious health conditions or to care for a family member’s serious health condition. An employee affected with the coronavirus or employees caring for family members with the coronavirus will most likely be entitled to FMLA leave. However, the real question is whether or not employees that have no symptoms of the virus but are suspected of coming in contact with the virus, are protected by the FMLA? Even if an employee has no symptoms but was quarantined for observation, he or she may still qualify for FMLA leave as “serious health conditions” also include “any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility.”
In conclusion, there are valid concerns regarding the coronavirus from an employment and workers’ compensation perspective. Employers must anticipate the likelihood of future pandemics and be proactive about dealing with the employment consequences that follow. It is recommended that any employers dealing with this virus consult with an experienced attorney to discuss the potential options available at this time and in the future.
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