Now officially called COVID-19, the coronavirus continues to spread worldwide and has been reported in many countries in addition to China. It’s even starting to spread throughout the United States. However, other counties have reported a greater number of infections. Some of these countries include Japan, Iran, South Korea and Italy.
Given the importance these countries play in the global economy, many employers may conduct business with, and therefore require travel to, one or more of these nations.
But what happens if an employee refuses to travel to one of these countries out of fear of contracting the coronavirus? Can an employee refuse to go? Let’s take a look at both the legal and practical answers to this question.
Legal Background: OSHA
Most employers in the United States are under the jurisdiction of the Occupational Safety and Health Act of 1970 (OSHA). This federal law’s overall purpose is to ensure the safety of employees in the workplace.
One of the major mandates of OSHA is found in the “General Duty Clause” located in Section 5(a)(1). It requires that all covered employers must:
“[F]urnish 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…”
The key question is whether this can give employees the right to refuse to travel to a location known to have a coronavirus outbreak. The quick answer is “maybe.” The longer answer is that even if an employer can force an employee to travel, it would be an extremely poor management decision to do so.
The General Duty Clause
OSHA’s requirements that employers must keep employees safe at work isn’t just limited to the employer’s offices or places of business. It can also apply when an employee travels overseas as a part of the job. But does contracting the coronavirus mean someone is likely to die to face serious physical harm? For the average person, the answer is probably not.
Figuring out how deadly the coronavirus is depends on who’s reporting the data. JAMA reports a fatality rate of 2.3%, while the New England Journal of Medicine states that the fatality rate of the coronavirus “may be considerably less than 1%.”
The New England Journal of Medicine theorizes that the coronavirus’ fatality rate might be greater than 0.1%, but is probably not as high as others have reported. That’s because there are possibly a notable number of individuals who get the coronavirus, but either don’t show any symptoms or have minor symptoms that they attribute to something else, like the common cold or seasonal flu.
To put all these numbers in perspective, the seasonal flu has a fatality rate of about 0.1%, SARS had a fatality rate of 10% and MERS had a fatality rate of 36%.
Therefore, it’s hard to argue that traveling to China, South Korea, Japan, Italy or Iran will “likely” lead to death or serious physical harm for the average person. But this doesn’t end the discussion.
What About Employees with Certain Health Conditions?
If we’re dealing with an employee with a medically recognized compromised immune system or a pregnant employee with certain complications, it’s possible that the General Duty Clause may allow them to refuse to travel to a location with a known coronavirus outbreak. But in these situations, another federal law may come into play: the Americans with Disabilities Act of 1990 (ADA).
If an employee has an ADA recognized disability that puts them at higher risk of harm if contracting the coronavirus, then the employer might be legally required to provide the employee with a reasonable accommodation. And it’s going to be hard for an employer to make the case that it will be an undue burden if a particular employee refuses to travel as ordered by the employer.
Even if an employer can legally force an employee to travel for business despite the employee’s protests due to fear of the coronavirus, the employer probably shouldn’t do it. Doing so would not only presumably create tremendous anger and resentment in the employee, but it will be bad for employee morale overall.
Employers need to think about how it will look when they are forcing employees to travel to countries that the Centers for Disease Control and Prevention (CDC) and the U.S. Department of State warn people not to travel to.
For instance, the U.S. Department of State has issued a Level 4 Travel Advisory for China and Level 3 Travel Advisories for Italy and South Korea. Level 4 means “do not travel” and Level 3 means “reconsider travel.”
The CDC has issued Level 3 Travel Health Notices for China, Iran, Italy and South Korea. This means the CDC recommends avoiding all nonessential travel to these countries. As for China and Iran, individuals who have been to either of these countries in the last 14 days may not enter the United States (for most foreign nationals) or are subject to health monitoring upon entry into the United States (U.S. citizens, residents and other individuals with legal status in the United States).
Then there’s the fact that even if an employer can successfully convince an employee to travel to one of these countries or another location with a coronavirus outbreak, there’s no guarantee the employee will be able to return easily. Even if they are perfectly healthy, they could be subject to quarantine should authorities decide that individuals returning from the country they just visited may now be infected with the coronavirus.
Another thing for employers to be aware of is that asking an employee to do something they don’t want to do can lead to legal headaches.
For example, if an employee has a good faith belief that the travel asked of them will put them at risk of serious physical harm or death, they might file a complaint with the Occupational Safety and Health Administration. The employee could claim that they are being subject to unsafe working conditions by the employer intentionally, negligently or recklessly exposing them to a communicable disease.
Should an employee file a complaint, employers must also keep in mind that Section 11(c) of OSHA prohibits retaliation against an employee who voices concerns about workplace safety.
The Bottom Line
Employers should limit employee travel to any country as recommended by the U.S. Department of State or the CDC. This is a good idea for public health, legal and practical reasons.
This article is also published on Forbes.