As the 2019 novel coronavirus (“nCoV”) outbreak continues unabated, affecting a growing number of countries including Korea, we wanted to share with you some considerations for companies doing business in Korea.  

1.     Obligation to Prevent Infections in Employees

Under the Labor Standards Act (the “LSA”) and the Infectious Disease Control and Prevention Act (the “Infectious Disease Act”), which are the two general statutes that have applicability to infections in the workplace, there is no general liability for the employer in case of an employee becoming infected with nCoV.  However, the employer is viewed as having an obligation, incidental to the employment relationship, to protect the safety of employees, which includes the obligation to take measures to protect employees from sources of danger within the workplace and to ensure that employees can work in a safe environment.  In particular, the Occupational Safety and Health Act (the “OSHA”) requires employers to protect the health of employees by prohibiting or limiting from working any employee diagnosed with infectious diseases pursuant to a physician’s diagnosis.  If an employee becomes infected with nCoV in the workplace as a result of the company’s failure to comply with the employer’s obligation to protect employee safety and health, the company may be held liable (civil liability for monetary damages or even criminal liability in some cases).

In this connection, we recommend that companies refer to the “Guideline on Measures in the Workplace to Prevent the Spread of Novel Coronavirus” published by the Ministry of Employment and Labor (the “MOEL”) (updated to version 4 on February 11, 2020; referred to below as the “MOEL Guideline”).  The MOEL Guideline prescribes in detail measures recommended to prevent nCoV infections in the workplace and measures to take in the event infection is detected.  In the event of a dispute, the authorities and the courts are likely to look to the MOEL Guideline as a benchmark to determine whether the company has fulfilled its obligation to protect employee safety and health.

2.     Responses to Finding a Suspected or Diagnosed Patient in the Workplace

Article 12(2) of the Infectious Disease Act requires anyone who finds a suspected patient (i.e., a person suspected of being infected with the pathogen of an infectious disease, but not yet confirmed as being infected) to notify the public health center that has jurisdiction over the site of discovery.  Accordingly, if the company suspects infection in an employee but fails to report to the relevant public health center and other employees or customers are infected with nCoV as a result, the company may be held liable. 

More specifically, the company is required to take the following measures:

If a suspected patient is found in the place of business

*According to the latest definition announced by the Korea Centers for Disease Control & Prevention (the “KCDC”), a “suspected patient” means any of the following: (i) a person who experiences fever (37.5℃ or above) or respiratory conditions (coughing, sore throat) within 14 days of returning from China, (ii) a person who experiences the aforementioned symptoms within 14 days of coming into close contact with a diagnosed patient while the diagnosed patient was experiencing symptoms, or (iii) a person suspected of being infected with nCoV, pursuant to a physician’s medical opinion (e.g., a person who experiences symptoms within 14 days of returning from a country with widespread nCoV infections or a person with pneumonia from unidentified causes).
 

• Check whether the suspected patient displays symptoms, require the suspected patient to wear a mask, and immediately notify the public health center with jurisdiction over the company’s place of business (or contact the KCDC at 1339).

• Ensure that the suspected patient and any employees who have come into contact with the suspected patient wait for public health center workers to arrive in a quarantine location within the workplace while wearing protective gear (i.e., masks, disposable sanitary gloves) and not leave the workplace until the public health center’s inspection is completed.

• After the suspected patient is transferred to the public health center, the quarantine location in which the suspected patient was placed should be disinfected using disinfectants such as rubbing alcohol or bleach by individuals wearing protective gear (i.e., masks, disposable sanitary gloves).

• Employees who have been issued quarantine orders by the health authorities or employees who have come into contact with suspected patients should first notify their supervisor over the phone without going to the office, then go to a hospital or place themselves in self-quarantine.

If a confirmed patient is found in the place of business (including among any worker working at the same place of business or any customer who visited the place of business)   

• Immediately notify the fact to all employees in the place of business (including dispatched or subcontracted workers).

• Cooperate fully with the KCDC’s investigation and must also cooperate fully with measures prescribed by the public health center, such as disinfecting the locations visited by the confirmed patient.

• Comply with the public health center’s instructions regarding active monitoring of any employees who were working in a location and time clearly separate from those in the path of movement of the confirmed patient.

If an employee has recently visited the greater China region (including Hong Kong and Macao)

*Even if an employee has recently visited the greater China area, the employee is not a suspected patient nor a case that should be reported unless the employee experiences fever or respiratory symptoms (e.g., coughing, sore throat).

**However, the MOEL recommends workers who have recently visited China to refrain from contacting others or engaging in public activity for 14 days after returning from China, and to use vacation days, work from home or temporarily close the business if possible in order to prevent the spread of infection (The Korean health authorities do not currently recommend individuals who have returned from countries other than China to work from home or use vacation days, but an employee who experiences fever or respiratory symptoms after returning from abroad should be advised to visit a medical institution or designated medical facility and disclose their travel history when receiving treatment). 
 

• If the employee has already come in to work, send the employee home, and ensure the employee reports over the phone his/her physical condition and whether the employee is experiencing symptoms. During this process, the employee should be kept apart from other employees, and the employee’s path of movement as well as persons the employee has come into contact with must be identified. 

• Designate an employee to handle nCoV related matters and have this responsible person confirm with the employee their physical condition and whether the employee is experiencing symptoms.  If the employee is determined as a suspected patient or as a case that should be reported, the responsible person must report the employee to the KCDC’s nCoV hotline (1339, 02-120) or the public health center with jurisdiction over the company’s place of business. 

If an employee has recently visited Southeast Asia 

* The KCDC is advising, as of February 11, 2019, Koreans not to travel to Singapore, Japan, Thailand, Malaysia, Vietnam or Taiwan, pursuant to an announcement by the World Health Organization. 

**Even if an employee has recently visited Southeast Asia, the employee is not a suspected patient nor a case that should be reported, unless the employee is suspected by a doctor to have contracted nCoV due to experiencing fever or respiratory symptoms (e.g., coughing, sore throat) or pneumonia of an unknown cause. 

***However, on February 7, 2020, the KCDC recommended that individuals who have recently returned from Southeast Asia refrain from unnecessary public activity for two weeks, monitor themselves for fever or respiratory symptoms, and receive treatment in designated medical facilities such as public health centers upon experiencing such symptoms.
 

• Recommend that employees not travel to the above countries, in addition to the greater China region, either for business or for personal reasons.

• If an employee has returned from any one of these countries in the past 14 days, recommend that the employee wear a mask, and ensure that the employee is treated at a designated medical facility such as a public health center as soon as they experience symptoms.

3.    Obligation to Grant Paid Leave/Payment During Temporary Suspension from Work

Article 41-2 of the Infectious Disease Act requires businesses that receive subsidies from the government to grant paid leave to employees for the duration of their hospitalization or quarantine.  The government plans to provide businesses that have granted paid leave to quarantined employees according to the Infectious Disease Act with subsidies, in the amount calculated on the basis of the daily wage per person (maximum KRW 130,000 per day).  Businesses can apply for this subsidy through branches of the National Pension Service starting February 17, 2020.  If the company receives a subsidy for paid leave from the government, the company is obligated to grant paid leave to the relevant employee. 

Employers do not have a legal obligation to grant paid leaves to employees who are unable to work due to illness, unless the company’s rules of employment or collective bargaining agreement (with the labor union) provides for such requirement.  However, as mentioned above, the MOEL Guideline does recommend that companies grant paid sick leaves even in the absence of such requirement under other rules. 

The MOEL Guideline states that a company must pay employees who are temporarily suspended from coming to work if the suspension is based on the business owner’s own discretion, but a company is not obligated to do so if suspension is unavoidable, such as due to the government’s quarantine order.  However, there is uncertainty regarding the former.  As such, the company should review on a case-by-case basis taking into account the relevant circumstances. 

We hope the above is helpful.  New developments in the outbreak or changes in the government’s guidance may necessitate other measures on the part of companies, so it is important to continue monitoring for related developments.