Until very recently, the respiratory virus known as Severe Acute Respiratory Syndrome (SARS) appears to have spread in the United States only to those who have traveled to Asia and to family members and health care workers who have come in contact with travelers. The Centers for Disease Control and Prevention (CDC) has now reported that at least one person with SARS in the United States appears to have contracted the disease in the workplace. The CDC has issued interim SARS guidelines with specific application to the workplace. Click here for the new CDC SARS guidelines.
The increasing stream of media reports on SARS has not surprisingly led to questions from employers about the legal implications of the disease as employers attempt to deal with the potential spread of SARS in the workplace. Employers must walk a careful tightrope as they balance their duty to provide a safe workplace for their employees with the concern that they may not violate anti-discrimination laws and other employee protections. Many employers’ immediate response to the SARS situation has been to reduce the international travel of personnel and instead to use other means of contact, such as videoconferencing. The legal issues, which are rapidly evolving, are not so easily addressed. Consider the following:
Disability Discrimination and Medical Inquiry Issues
The question being asked by some employers is whether they can require employees who have recently returned from Asia, but who are not exhibiting any SARS symptoms, to submit to medical examinations and/or to stay home during an apparent incubation period. Such action poses the potential for violation of the Americans with Disabilities Act (“ADA”) and related state laws which permit medical inquiries only if they are related to the job and are consistent with business necessity. Such inquiries are permitted under the ADA if the employer has a reasonable belief based on objective evidence that the employee will pose a direct threat to others. If an employee actually has been quarantined by a public agency, the employer would appear to have a more legitimate basis for requiring a medical release before allowing the employee to return to work. But if there has been no action or even a recommendation by a public agency and the employee is asymptomatic, and the only reason for making inquiries is recent travel to Asia or some other high risk area, there is a greater chance that an ADA violation would be found. This analysis could change, however, if the employer had some objective evidence of actual exposure to SARS. Perhaps the best approach is for the employer to engage in an interactive process with the employee to determine if exposure has occurred, but that interaction must itself comply with ADA guidelines. Employers should limit inquiries to issues relating to the job and the workplace.
Leave of Absence Issues
Another issue that employers face is how to handle leaves of absence for employees who are ill or who have been quarantined because of SARS. Whether to grant such leave and whether such leave should be paid or unpaid will depend on several factors, including whether the illness or the quarantine was the result of work-related travel or other exposure and whether the employee is exempt or non-exempt. An employee who contracts SARS and becomes ill while traveling for work would probably be eligible for workers’ compensation leave and benefits. Depending on the employer’s policies, the severity of the illness, and the employee’s length of service, an employee who is exposed or becomes ill as a result of non-work-related travel may be eligible to take sick leave, vacation leave, and/or family/medical leave.
Whether an employee who is quarantined must be given paid administrative leave is unclear. If the quarantine stemmed from work-related exposure, employers would be well advised to pay the employee during the resulting administrative leave. Whether to do so for non-work-related exposure may depend on the length of the quarantine, the exempt/non-exempt status of the employee, and existing employer policies. The CDC guidelines suggest how long persons who have been exposed to SARS should avoid public contact, and specifically state that persons who develop symptoms should not go to work. To protect the safety of the workplace, employers may want to give paid leave to an employee who remains at home for a self-quarantine per government guidelines, even allowing the employee to perform work assignments at home if able. If an employee is quarantined at home, either by a public agency or under self-quarantine per government guidelines, employers may even have a duty to accommodate this potential disability by facilitating work from home where possible.
Another issue facing employers is how to address employees’ concerns about SARS in the workplace, such as whether personal protective equipment should be issued. Although employers must take such requests seriously and investigate whether specific circumstances warrant such equipment, employers may also want to refer employees to the CDC SARS guidelines which state that the routine use of personal protective equipment for protection against SARS is currently not recommended in the general workplace (outside the healthcare setting). Employees can be expected to express concerns about co-workers returning from travel to Asia. Among the most compelling reasons for offering paid leave to employees who have returned home from such travel are that it may encourage self-quarantine by those employees and diminish co-worker concerns about exposure. Absent objective evidence of exposure, however, employers must take care not to run afoul of the various employee rights by requiring employees to stay home.
Employers should consider establishing written policies that address SARS and other communicable illnesses. Such a policy should state the importance of workplace well-being and safety, emphasize the company’s commitment to its anti-discrimination policies, and address the issues raised above.