As I’m sure everyone knows, the news has been dominated in recent weeks with reports about the outbreak of the 2019 Novel Coronavirus in China. This new and poorly understood virus has thus far sickened thousands and killed hundreds of people in mainland China, and its reach is spreading as visitors travel from China back to their home countries.

The impact to date has been modest in comparison to the toll that seasonal influenza has taken in the United States this year (where, according to the Centers for Disease Control and Prevention (CDC) it has thus far caused an estimated 22 million flu illnesses, 210,000 hospitalizations and 12,000 deaths). Nevertheless, because this virus is so new (or “novel”), fear of the unknown has resulted in what can best be described as widespread public panic over this never-before-seen virus. Coronavirus panic unfortunately has the serious potential to lead to discriminatory conduct against people of Chinese or Asian descent, and against non-Asians who have recently traveled to infected regions. Such conduct – even if motivated solely by a genuine concern about avoiding illness – can have serious legal implications for both bases and for drivers.

Drivers need to be mindful of the fact that it is a violation of the TLC’s rules to refuse to pick up a passenger due to their race, ethnicity, destination, disability, sexual orientation, gender or other legally protected characteristics. The TLC’s “Office of Inclusion” (established in 2018) prosecutes instances of discriminatory service refusal brought to the TLC’s attention and imposes penalties inclusive of fines and possible loss of the non-compliant driver’s license. If a driver accepts a job, arrives to pick up the passenger and then refuses service because the passenger is Asian, the driver has violated the rules.

There have been reports in the news of this exact sort of discriminatory conduct having occurred. A few weeks ago, a Chinese-American woman named Lillian Wang arrived at San Francisco International Airport from a trip to Mexico with a Caucasian friend, Katie Schoolov. When the Lyft car Schoolov had ordered arrived and the driver saw she was with Wang, the driver refused to unlock the door until he spoke with Schoolov at length and confirmed that the women hadn’t been to China. Lyft subsequently removed the driver from its platform, however that is obviously of little consolation to Ms. Wang.

The forgoing is not to say that independent contractor drivers must accept every job offered to them; we know that’s not the case. An independent driver can technically refuse an airport job picking up a passenger arriving on a Chinese airline, and he doesn’t have to give a reason for doing so. If his motivation is fear of contracting coronavirus, however, this is neither a wise nor effective way to avoid illness.

First, all passengers arriving from regions where there has been a coronavirus outbreak are being screened for symptoms of illness upon arrival in the United States. While this certainly is not a guarantee that someone with the coronavirus won’t get through, the screening does offer at least a layer of protection against that occurring.

Second, as is discussed above, while coronavirus is nothing to sneeze at (pun intended), statistically a driver has a much greater chance of contracting influenza than the coronavirus simply because there are far more people walking around with that virus. Thus, picking up a medically screened and cleared passenger who has arrived from China actually poses somewhat less of a risk than picking up a passenger arriving on a domestic flight.

In contrast with the domestic passenger who hasn’t been screened for anything (influenza included), the screening the international passenger received may detect not only possible coronavirus symptoms, but influenza symptoms as well (both can cause runny nose, headache, cough, sore throat and fever among other symptoms).

Short of staying home and not working, the best way drivers can protect themselves against getting sick is getting a flu shot (a coronavirus vaccine is not yet available), frequent handwashing, wiping down door handles and other commonly-touched surfaces with disinfectant, and keeping a box of tissues on the back seat for passengers to use if they feel the need to sneeze.

Coronavirus concerns impact not only those behind the wheel, but those behind their desks at the base as well. An outbreak of any type of virus – coronavirus included – can severely impact productivity and your ability to service customers. Avoid illness in the office by encouraging employees to get flu shots (again, flu poses a far greater risk than coronavirus), by providing employees with plenty of tissues and hand sanitizer, and by encouraging them to cover their coughs and sneezes, and wash their hands frequently.

You should also regularly disinfect anything employees might touch – phones, keyboards, doorknobs, handles, break room surfaces, elevator buttons, etc. Employees who exhibit symptoms of illness should always be encouraged to stay at home.

What about employees who have recently been to China, or another country where there has been a coronavirus outbreak? Can you make them stay home too, even if they don’t appear to be sick? The general consensus among employment lawyers is that you can – however, not for more than 14 days (the CDC believes the incubation period for coronavirus is from 2-14 days).

Bear in mind that if you choose to go this route, the employee must be paid if he/she does any type of work from home. For non-exempt hourly employees, this means if the employee spends an hour answering e-mails regarding business matters the employee must be paid for that hour. If the employee is a salaried exempt employee and performs any type of work, the employee is entitled to be paid their full salary for the workweek.

Lastly, as the experience Ms. Wang suffered at the airport vividly illustrates, the coronavirus is not only spreading illness, but discrimination, xenophobia and anti-Asian racism as well. People who already harbor discriminatory animus against minorities and other protected groups unfortunately tend to view situations such as what we’re seeing with coronavirus as a green light to say or do whatever they please.

Employers who tolerate discriminatory or harassing conduct of any type on their premises do so at their peril. As everyone should be aware, there are a multitude of Federal, State and Local laws that strictly prohibit discrimination and harassment based upon race, national origin and other protected categories. Employers who look the other way and fail to take prompt and appropriate corrective action in response to employee-on-employee harassment and/or discrimination risk finding themselves on the receiving end of a costly and disruptive lawsuit.

Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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