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In addition to health concerns, coronavirus a legal and employment issue

Nixon Peabody partner Kim Harding and Monroe County Health Commissioner Michael Mendoza. (Velvet Spicer)

Nixon Peabody partner Kim Harding and Monroe County Health Commissioner Michael Mendoza. (Velvet Spicer)

Although coronavirus, or COVID-19, has not yet caused major disruptions in Rochester, it’s simply a matter of time before it does. And business and community leaders need to be prepared, officials say.

“The most important message I can impart to all of you today is the importance of gathering facts,” said Michael Mendoza, commissioner of public health for Monroe County’s department of public health. “I think facts are the way we combat fear and I think to the extent that we all can come away with a shared understanding of where we need to go, I think that is the most important goal we can possibly achieve.”

Mendoza spoke Wednesday to business leaders as part of a presentation coordinated by Nixon Peabody LLP, the County of Monroe and the Greater Rochester Chamber of Commerce Inc.

The facts are that the virus — which has killed thousands of people around the globe — is spread through respiratory droplets in a person-to-person manner, rather than an object-to-person manner.

“This is not an airborne illness. Tuberculosis, measles, those are airborne illnesses. Those can linger in rooms for hours. We’re not dealing with that here. We’re dealing with a respiratory illness which has roughly a radius of six feet,” Mendoza noted.

Some 80 percent of individuals have mild to no symptoms, and those who do will present with a fever, cough or shortness of breath. The incubation period for coronavirus is less than 14 days.

“From the point that the individual contracts the virus or is exposed to somebody with the virus, we believe they will become symptomatic within 14 days if they’re going to become symptomatic at all,” Mendoza said. “The vast majority of these individuals become symptomatic within the first five to seven days. So the period of quarantine at this point would be for 14 days at the very most.”

And while there have been no fatalities in New York state as of noon Wednesday, Mendoza noted that officials have no idea of the fatality rate in the U.S. because there have not been enough cases to study nationwide. The virulence of the virus is somewhere between that of seasonal flu and Spanish flu, at roughly .1 percent to 2 percent. But Mendoza said that number is changing because most of the data is coming from China and those numbers are very likely to be skewed.

COVID-19 is slightly more contagious than the common cold, Mendoza said. Someone with coronavirus, gone unchecked, is likely to infect two to four people, whereas someone with a cold will infect two others. To put that in perspective, an unprotected individual with measles is likely to infect 15 people.

“The goal at this stage is to rapidly identify new cases, ideally cases of people who are already in isolation, so we catch them before they become infectious so that we know that they have not infected anybody else. That’s the goal of containment,” Mendoza said. “We are at the point in this outbreak where containment efforts are not likely to be that effective that much longer. Because we know that this is very likely coming to our community in the near future, containment strategies are no longer going to be enough.”

That means employers who haven’t yet begun making contingency plans for their business and workforce need to do so soon.

“We are encouraging employers to review their sick-leave policies and/or develop communicable illness policies, which can be used even in instances of the seasonal flu, if not coronavirus specifically,” said Kim Harding, a partner in the labor and employment group at Nixon Peabody. “For communicable illness policy, particularly in this case, we’d suggest employers develop procedures for when employees should not report to work and require employees to report if they are experiencing symptoms or if they become infected with the virus or come into contact with someone with the virus.”

The caveat to that, Harding said, is that employers must be careful about balancing the need to know about the infection with respecting employee rights under the Americans with Disabilities Act.

“Anyone who reports to you that they’ve been infected with the virus, that’s confidential employee medical information,” she explained. “That’s protected by law. You really want to make sure that you’re keeping that information confidential and at least only telling those with an absolute need to know.”

Donald Chesworth, a partner in the Rochester office of Tully Rinckey PLLC, agreed, noting that it will become a careful balancing act between respecting an employee’s privacy and protecting others in the company.

“You need to make sure that you don’t tell other employees when you have a sick employee, yet at the same time you want to make sure that you tell employees to be careful,” Chesworth said.

Chesworth also said companies need to be as flexible as possible, particularly when it comes to policies regarding remote work.

“I think employers need to make sure they’re not strictly enforcing their employment policies and such things as requiring a doctor’s letter if you don’t show up for work for a couple of days. That ought to probably be suspended for the time being based on what’s going on,” Chesworth advised. “Employers in many ways tried to protect themselves from employees who may not be as aggressive and energetic as they would like so they’ve put some of these protections in place, but I think that they need to tell all employees that they’re going to be very relaxed on this.”

Travel has become an important issue to consider for both personal and business travelers, and the state has set up a hotline (888-364-3065) to address questions, Mendoza said. Monroe County has engaged with the Centers for Disease Control, the state Department of Health and others to work on airport screening.

“We cannot expect that we can avoid having this come to our community. But I do think that some prudent travel precautions are indicated,” Mendoza said.

Harding said Nixon Peabody is advising employers to review their travel policies and their current directives on travel, always balancing employee risk of exposure to the virus with employee concern for exposure, as well as business necessity.

“Any travel that’s not absolutely required should probably be postponed or canceled, particularly if the employee is concerned,” Harding said, noting that this directive should apply to international travel and domestic travel to areas of the country known to be affected by the virus.

Chesworth said business leaders also need to rethink policies around visitors and/or large gatherings, such as those that take place at convention centers, museums and art galleries, or organizations that care for the elderly, a population that is particularly vulnerable to the virus.

“There’s a lot of fear with the coronavirus and I think there should be serious concern,” he said. “A lot of workplaces welcome visitors, but if I were running a nursing home right now I’d probably want to restrict the number of visitors.”

Monroe County about a month ago put its longstanding quarantine and isolation plan into place, Mendoza said, but added that the “days of quarantining and the days of containment are numbered.”

“We now need to shift toward community mitigation,” the county’s public health commissioner said Wednesday. “Non-pharmaceutical interventions (NPIs) are ways that we can all work together to prevent the ongoing spread of this infection, if and when it does come to our area.”

The CDC has a number of NPIs available at its website to help business and community leaders, as well as individuals, make timely and crucial decisions about the health of their organizations and community.

“The goal of these NPIs is to reduce the societal impact of a pandemic,” Mendoza said. “The assumption is that it’s already here, and our job as a community is to work together to prevent or mitigate all of the impacts on our economy, on our businesses, on our schools, on our infrastructure and our health.

“The Monroe County Health Department will not alone be able to protect everybody in this community. We need to work together and take reasonable precautions in our places of work, business, faith, homes to do what we can to prevent this from spreading,” Mendoza said.