Duty to Prevent Disease and Infection is Part of Employers’ Duty to Provide Safe Workplace
Both Illinois Governor J.B. Pritzker and Indiana Governor Eric Holcomb are in Washington, D.C. this week, along with 41 other state governors attending the National Governors’ Association Winter Meeting. On Sunday, the newly formed White House Coronavirus Task Force gave its latest update on the Coronavirus Outbreak to the collected State Governors.
The Task Force answered Governors’ questions and addressed issues brought up by the governors as to how the rapidly spreading virus can be controlled and combated at their individual state level. Things like collaborations between federal, state, and local agencies were discussed. Issues included restricting travel; screening individuals; and diagnosing and treating those infected with the disease.
From the Task Force: “[W]hile this is a serious public health matter, the risk to the American public remains low at this time, and the federal government will continue working in close coordination with state and local governments to keep it that way.”
Coronavirus in Illinois and Indiana: January – February 2020
The Chinese virus has already reached our part of the country. In Illinois, two coronavirus victims have been treated and released by a Chicago hospital and are now quarantined in their home. For more, read “Chicago’s coronavirus patients discharged from hospital to home isolation,“ written by Meghan Dwyer and published by the Chicago Tribune on February 7, 2020.
Last week, an individual in Valparaiso was determined to be “potentially infected” with the coronavirus. Final confirmation was done at the laboratory of the Centers for Disease Control and Prevention (CDC); meanwhile, the Indiana patient was treated and quarantined by the Porter County Health Department. See, “Possible coronavirus case being monitored in NW Indiana,” published by the Michigan City News-Dispatch on January 29, 2020.
Luckily, the CDC testing came back negative. So far, there are no known coronavirus cases in Indiana.
However, a Highland couple who just returned from China have voluntarily quarantined themselves in their Indiana home for 14 days, just to make sure they are not infected with the virus. Read, “Coronavirus Outbreak: Northwest Indiana Couple Voluntarily Quarantines Themselves after China Trip,” written by Lexi Sutter and published by NBC-Chicago (WMAQ) on February 1, 2020.
In addition to our governors meeting with White House officials this week, there are ongoing public health strategies at all levels of government being implemented on an expedited basis to prepare for any outbreaks of the coronavirus in Illinois and Indiana. Among them are plans to have the Great Lakes Navy Base serve as a facility where local coronavirus victims could be housed and treated.
What Actions Are Companies Taking to Protect Their Employees? The Employer’s Duty of Care
Meanwhile, there must be action taken not only by government officials but by the private sector as well. Under both federal and state law, employers have a duty to provide workers with a safe and healthy place to work.
Federal Duties of Care to Protect Employees against Coronavirus
At the federal level, the Occupational Safety and Health Act (OSHA), for example, places a duty upon employers to protect employees from “recognized hazards” to the employee’s safety or health that may cause the worker serious injury or death. 29 U.S.C. §654.
Specifically, this legal duty of care is found in the OSHA “General Duty Clause,” which states:
Each employer (1) shall furnish to each of his employees 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 to his employees….
State Duties of Care to Protect Employees against Coronavirus
At the state level, various laws are in place requiring employers provide employees with a safe working environment. Additionally, other personal injury laws may also place additional legal duties upon employers in protecting workers (and possibly third parties) from harm, such as premises liability duties of care and maintenance regarding property and worksite conditions.
Essentially, employers in both Indiana and Illinois have two duties of care: first, a common law duty to take reasonable care of their employees’ safety when necessary, which includes implementing all reasonable steps to prevent the worker from being exposed to the risk of catching the coronavirus. Second, they also have a common law duty to take reasonable care to provide (and maintain) a reasonably safe workplace premise for employees at all times. These are two distinct legal duties of care placed upon the employer.
What Employers Can Do to Protect Workers from Coronavirus Outbreak
How should employers keep workers safe from this extremely contagious virus? How can employers be protected from exposure or infection?
In both Indiana and Illinois, employers should be having the same kind of emergency planning and preparation meetings as the state governors had with the White House Task Force this week.
Certain Industries of Particular Concern
Illinois’ renowned National Safety Council, along with the CDC and the World Health Organization (WHO), is closely monitoring data regarding “2019 nCoV.,” or the coronavirus. Of particular concern to the NSC are those employed in the travel industry, as well as those providing health care, and any employee who is required to travel internationally for work.
From the NSC: “NSC urges employers – particularly those in the healthcare sector, those with employees who travel internationally and those in the international travel industry – to assess their risk of exposure and ensure procedures are in place to effectively control transmission. Workplace illness prevention training is imperative for all employees, and employers should provide it….The safety of workers is employers’ most vital task.”
Recommended Actions for Employers to Take
Employers are recommended to implement the following actions as provided by the CDC, among other things, that will help to stop any possible transmission of the coronavirus. From the CDC (quoting directly from the CDC’s Coronavirus website):
- Actively encourage sick employees to stay home:
- Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
- Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
- Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
- Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
- Separate sick employees:
- CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
- Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees:
- Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
- Provide tissues and no-touch disposal receptacles for use by employees.
- Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
- Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
- Visit the coughing and sneezing etiquette and clean hands webpage for more information.
- Perform routine environmental cleaning:
- Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
- No additional disinfection beyond routine cleaning is recommended at this time.
- Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
- Advise employees before traveling to take certain steps:
- Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from China, and information for aircrew, can be found at on the CDC website.
- Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.
- Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
- If outside the United States, sick employees should follow your company’s policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services. However, U.S. embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private U.S. citizens overseas.
- Additional Measures in Response to Currently Occurring Sporadic Importations of the 2019-nCoV:
- Employees who are well but who have a sick family member at home with 2019-nCoV should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
- If an employee is confirmed to have 2019-nCov infection, employers should inform fellow employees of their possible exposure to 2019-nCoV in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed 2019-nCoV should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Claims for Victims of Coronavirus Outbreak in Indiana and Illinois
Hopefully, proactive and prompt action at all levels of government (the State Department’s February 2, 2020 “Do Not Travel” advisory for China, for instance) as well as by local employers will prevent any widespread outbreak of the coronavirus in Indiana and Illinois.
However, if there are victims who are seriously or fatally injured by the coronavirus, and investigation into their circumstances reveals their employer failed in its duty of care to protect workers from harm during this public health emergency, then both federal law as well as the state laws of Indiana and Illinois may provide avenues for justice to the coronavirus injury victim.
The extent of the coronavirus pandemic is still being defined for our part of the country, as well as the world. While cases are limited in Illinois and Indiana, the risk of exposure is real and employers must act now to keep workers safe, especially in vulnerable industries like travel or health care. Please be careful out there!
