Worker rights questions loom as COVID- 19 continues spread
As organizations from schools to corporations dispensed guidance this week to their employees on procedures for dealing with any influx of coronavirus in their locales, an open question remains: What rights do workers have to set the parameters under which they will go to work, based on their own assessment of risk?
Coronavirus — designated COVID- 19 by the World Health Organization — represents a new case study for worker rights when it comes to infectious disease. There’s no no direct parallel in U.S. history, given global travel today coupled with the virus’incubation period prior to symptoms surfacing, such as fevers and coughing.
Companies with direct operations or partners in China have offered the first glimpse of the impact of coronavirus and initial responses, including several in Connecticut such as Milford- based Subway, Norwalk- based Booking Holdings and Danbury- based Iqvia Holdings.
In a letter this week to customers and business partners, the Wallingford- based manufacturer of electric components Amphenol noted the difficulties of balancing responsibilities to those entities with concern for its own employees in China. Amphenol’s steps have included establishing “epidemic control committees” at its China facilities, screening employees for any symptoms prior to starting work, mandating quarantines where necessary, and screen
ing visitors as well.
But across China, some companies are dealing with significant absenteeism in their employee ranks. On Thursday, the Centers for Disease Control and Prevention broached the possibility of that occurring as well in the United States, particularly for organizations that have regular influxes of visitors or send employees to locations outside their control, whether locally or on business trips.
Through Tuesday, a majority of Global Business Travel Association members had canceled at least some international trips, the group indicated in flash poll results released this week, but only 7 percent had done so for stateside travel.
“We are in uncharted waters. When looking to precedent under this particular situation, there’s not much of it,” said Gary Phelan, a partner with the law firm Mitchell & Sheahan with offices in Stratford and Westport, who teaches disability law at Quinnipiac University. “For example, let’s say an employee says, ‘ I’m not going to travel. I’m not going to get on an airplane,’ and the employer says, ‘ That’s your job. ... You don’t go, you’re fired.’ That may raise issues with regard to wrongful termination.”
Duty to protect from infectious disease?
According to the most recent estimates by the Bureau of Labor Statistics, on any given day U. S. employers have an absenteeism rate of 1.9 percent due to illness or injury, taking up the slack on half that lost productivity through other workers covering duties, or employees getting caught back up on their return.
A decade ago, the Occupational Safety and Health Administration issued wide- ranging guidance on how workplaces should prepare for a flu pandemic, envisioning a scenario in which job absenteeism topped out 40 percent, whether the result of sick employees and family members, or
fear of contracting the flu on the job.
Since then, the question of mandatory flu shots for employees has dominated legal thought on the topic, with the possibility of the question being linked to any future coronavirus vaccine as employers look to head off any disruptions to their operations. But in its most recent analysis published last year of workplace illness and injury, the AFL- CIO called on the Trump administration to have OSHA better address the issue of infectious disease in the workplace.
Phelan says elements of the Americans with Disabilities Act could apply to legal disputes arising from decisions related to coronavirus by employers or workers.
In the past few weeks, insurance think tanks have raised the question of whether employees could file for workers’ compensation coverage of medical bills as a result of coronavirus, with the obvious sticking point on being able to prove they contracted in the course of their employment.
The Washington, D. C.- based nonprofit Workplace Fairness notes workers can use the federal Family and Medical Leave Act, allowing them to take time off for weeks without compensation, but whether FMLA can be invoked by an employee for precautionary reasons is another question.
Workplace Fairness notes employers have wide latitude to bar workers from returning to work if they fear a communicable disease. But it does not specify if workers can do so themselves, and notes there is significant leeway for interpretation.
“When there is a fear of a nationwide pandemic, and the spread of a disease makes the news, employers are likely to consider the illness ( a) serious medical condition,” Workplace Fairness states. “Your employer does have a duty to protect you from recognized hazards. However, there is no specific duty that details what an employer must do to protect you from an infectious disease.”