Coping With Coronavirus In The Marine Industry
By Jeanne Amy and Maggie Spell
Jones Walker LLP
In this unsettling time of the ever-evolving coronavirus pandemic and social distancing, unique challenges face the marine industry for crew members on vessels given the close quarters, travel, and crew changes. Employers, regardless of industry, are justifiably concerned about the potentially catastrophic impact on their employees and businesses.
At minimum, this crisis is proving to be an incredible disruption to most businesses, shifting the focus almost entirely to crisis management and, in the future, recovery. It has also created new reporting obligations and cleaning recommendations that impact how employers within the marine industry operate. In short, employers should stay apprised of the ever-changing conditions and balance the practical realities with the applicable federal, state, and local employment laws to weather this crisis and reduce risk of employment-related lawsuits or agency action.
Reduce spread of the coronavirus in the workplace. COVID-19, the disease caused by
the coronavirus, is transmitted through droplets, primarily where someone comes in contact with respiratory droplets and then touches their eyes, nose, or mouth or by breathing in droplets from someone who is infected. To prevent spread, follow the guidelines for cleaning issued by the Centers for Disease Control and Prevention (CDC). While these guidelines are not mandatory, they may be seen as the standard of care for reducing the spread of the coronavirus. Keep a log of cleaning efforts.
Encourage good personal hygiene. Regularly remind employees of best practices for preventing the spread of contagious illnesses like the coronavirus. Ensure crew members have access to soap, hand sanitizer, and plenty of paper towels and tissues. This may seem easier said than done on a vessel, but consider whether to add temporary handwashing stations with soap and water, or at a minimum hand sanitizer, near key high-touch surfaces. Encourage crew members to maintain proper distance (six feet) to the extent feasible while still performing their job duties.
Clean, clean, clean. Research shows the coronavirus can live on surfaces for up to 72 hours, depending on the type of surface. In light of this, perform additional cleaning of frequently used items and surfaces. Provide disposable wipes so crew members can wipe down surfaces and equipment, as crew members should not share equipment without proper cleaning between uses.
Remind crew members to self-monitor for symptoms. Symptoms include fever, cough, and difficulty breathing. If a crew member is exhibiting symptoms prior to boarding a vessel, the crew member should notify his employer that he is exhibiting symptoms and stay away from the vessel. If desired, employers may take the temperature of crew members boarding the vessel.
Re-evaluate crew change practices. Given the recommendation of social distancing, crew changes will present opportunity for contact and transmission of the coronavirus. Some companies may be considering eliminating crew changes for the duration of the coronavirus pandemic. This approach is a short-term measure that may help eliminate transmission of coronavirus by reducing the number of crew members who interact and removing the additional complication of sanitizing the vessel between crew changes. But, given the uncertainty of how long the pandemic will last, this may not be a feasible long-term solution. Even if temporarily eliminating crew changes, begin exploring options, such as staggering shifts, for reducing interaction between crew members during a crew change and for cleaning the entire vessel and sanitizing the living quarters and high-touch surfaces. Inevitably, there will be a need to make a change to the crew on a vessel if, for example, a crew member has to leave the vessel for personal reasons, begins to exhibit symptoms of COVID-19, or has his employment terminated for performance reasons. Crew members should be advised to only board cleared ships.
Know how to handle travel abroad. There may be occasion when a vessel travels to a Level 3 country. If the visit occurred with 14 days of the vessel’s return to port, the vessel and crew may be detained for quarantine. But, keep in mind the time in transit, as this is essentially self-quarantine and may reduce the additional self-quarantine time needed to protect from spread.
Prepare for illness onboard. The odds of a crew member suffering from COVID-19 while on board are relatively high. The incubation period for the virus is 14 days, so it may take that long for a crew member to exhibit symptoms. If a crew member is exposed to coronavirus and then boards a vessel even 13 days later, it is possible the crew member is infected and will exhibit symptoms of COVID-19 while onboard.
Make a plan if a crewmember becomes ill onboard. The United States Coast Guard (USCG) requires that illnesses onboard a vessel be reported to the Captain of the Port (COTP) and CDC. The illness of a person onboard a vessel that may adversely affect the safety of the vessel or port facility a “hazardous condition” pursuant to 33 CFR 160.216. If a crewmember exhibits symptoms consistent with COVID-19 or other flu like illnesses, it must be reported. Specifically, a person with a fever of 100.4 degrees F or greater that has persisted for more than 48 hours is a reportable illness, according to USCG guidance. Captains who fail to report illnesses to the COTP and CDC are subject to Coast Guard enforcement action, including civil penalties, vessel detentions, and criminal liability.
All industry stakeholders should review and be familiar with Section 5310: Procedures for Vessel Quarantine and Isolation; and Section 5320: Procedures for Security Segregation of Vessels in their Area Maritime Security Plan. The CDC has issued specific guidance for quarantine recommendations on vessels.
Maritime facility operators are not permitted to impede crew members from embarkation/disembarkation at their facilities. That authority rests solely with CBP, Coast Guard, or the CDC. Facility operators should contact local CBP, Coast Guard, or the CDC to request specific restrictions on crewmembers’ access.
Operators should stay apprised of USCG developments by reviewing Marine Safety Information Bulletins. The Lone Star Harbor Safety Committee released “best practices” for ships transiting the Houston Ship Channel and The American Waterways Operators developed a COVID-19 Contingency Planning Guide for Towing Vessel and Barge Operators.
Evaluate necessity of leave for sick employees. Remember that an employee may be entitled to leave if diagnosed with COVID-19 under the Family and Medical Leave Act or other applicable leave laws. And, for employers with fewer than 500 employees, an employee may be entitled to leave to care for a minor child if the child’s school or place of childcare has been closed or is unavailable during a public health emergency under the Emergency Family and Medical Leave Act, which is effective April 2, 2020. The first two weeks may be unpaid, but an employee can use accrued paid leave, including emergency paid sick leave (discussed below). The remaining 10 weeks are paid at two-thirds of the employee’s regular rate (with a maximum of $200 per day and $10,000 total). The law exempts employers with fewer than 50 employees from civil damages.
Additionally, a private employer with fewer than 500 employees will be required to provide paid sick leave to an employee who is unable to work or telework because the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, has been advised by a health care provider to self-quarantine, is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, is caring for a minor child whose school or place of child care is unavailable due to COVID-19 precautions, or is experiencing substantially similar conditions. If entitled to paid leave, full-time employees must receive 80 hours at their regular rate, but if caring for a family member, sick leave is paid at two-thirds the regular rate; part-time employees should receive pay for their average number of hours worked over a two-week period. There are limits on what must be paid.
Notify co-workers of a positive test. This applies regardless of whether the employee is a crew member on a vessel or works onshore. Co-workers should be promptly informed if an employee tests positive for COVID-19. But, the identity of the infected employee should be kept confidential.
Ensure proper reporting of illness or death onboard. Death or illness caused by COVID-19 among crew passengers must be disclosed to the CDC. And, in the event a crew member onboard exhibits any symptoms of COVID-19 and has traveled to a Level 3 country or been in contact with someone suspected of having COVID-19, notice must be submitted to the COTP and CDC immediately, but at least 96 hours before reaching the port. This means it is crucial for employees to self-monitor while onboard and to report any symptoms.
Continue to evaluate the potential for reductions in force. At this point, it is impossible to predict how long this unprecedented crisis will last, and the economic implications are far-reaching. The potential for layoffs may become an unfortunate reality, so monitor this and keep in mind that notice may need to be given to employees in the event of a layoff under the Worker Adjustment and Retraining Notification (WARN) Act.
Coronavirus stories in the March 23 edition of The Waterways Journal: