New England Biz Law Update
Some have suggested that the Severe Acute Respiratory Syndrome (SARS) epidemic has abated. Others still express concern.
Whether SARS is on the wane or not, it is important for employers to address international health issues as they affect their employees. Employers need to develop and implement practices and procedures to protect their employees while minimizing the disruption of normal business operations.
This article will provide employers with information they need in order to develop policies appropriate for the workplace when an international contagion develops. It also identifies legal issues that arise in this context.
There are no easy answers for how to deal with SARS or any other international contagion. Employers should rely on two principles to govern their behavior. First, employers must communicate with employees regarding the effect, if any, of SARS (or any other contagious disease) in their workplace — emphasizing the company’s willingness to take steps to protect their health. Second, employers should avoid creating a sense of panic in the workplace and should regularly consult the most up to date resources for keeping track of new information and remain flexible in how they deal with it.
Workplace Guidelines And Legal Implications
Travel To Affected Areas/Quarantine/Medical Exam
One of the most common issues arising with respect to contagious diseases is how to address employee business or personal travel to affected areas and whether to and how to implement a quarantine upon their return.
Many companies have postponed or cancelled work travel to SARS affected areas The CDC issues both a Travel Advisory, which recommends that non-essential travel be deferred and a Travel Alert that does not advise against travel but informs travelers of potential health concerns. Employers should check the CDC website at www.cdc.gov/ncidod/sars for more information. The WHO also issues a Summary of Travel Recommendations, updated daily, that can be accessed at www.who.int/csr/sars/travel/2003_05_30/en/
According to the Business Travel Coalition, 58 percent of companies surveyed banned travel to specific Asian countries due to SARS. (“SARS Means Changes in the Workplace,” Business and Legal Reports, Inc., April 22, 2003. To address this problem, many companies are taking advantage of technology and are using videoconferencing, webcasting, teleconferencing, or other means of conducting business.
For employers that must send employees to affected areas, it is appropriate (but not required) to implement a quarantine policy for such employees upon their return. Since the incubation period for SARS is typically between two and seven days, a 10-day quarantine is sufficient. (“Information Regarding Severe Acute Respiratory Syndrome (SARS),” U.S. Department of Labor, Occupational Safety & Health Administration June 2, 2003, www.osha.gov/dep/sars).
Quarantines for other contagions may vary. In order to avoid penalizing an employee who has traveled to an affected area at the request of his/her employer, it is advisable to continue to pay employees during the quarantine period and help them to work from home or other remote locations, being careful to reduce or eliminate any adverse impact on their employment inadvertently caused by the quarantine, such as missing important meetings or opportunities.
Companies should also adopt a policy requiring employees to report any personal travel to affected areas and provide ample notice that employees may be quarantined upon return from such travel. Depending on the circumstances, it may not be necessary to pay employees who are quarantined due to voluntary personal travel, provided that the employer has provided sufficient notice of the policy to employees. Employees, however, may be eligible to be paid during this period pursuant to vacation policies, short-term disability benefits, or the Family and Medical Leave Act.
Privacy Issues/Reporting
Employers should be careful to comply with applicable laws and regulations regarding privacy of employee personnel and health information when inquiring into the personal travel plans of employees or inquiring about their medical condition.
Healthcare providers and public health personnel should report cases of symptomatic employees or suspected exposure incidents to their state or local health departments. Employers are not required to do so but may contact the state or local health department or the CDC without fear of violating privacy laws.
ADA Issues
Since SARS is a temporary condition and generally lacks limitation on a major life activity, it will likely not be considered to be a disability under the Americans with Disabilities Act (ADA). In addition, employers who restrict access of employees to the workplace based upon SARS would have a defense to an ADA allegation under OSHA’s Direct Threat analysis (see below). Other infectious diseases may trigger the ADA.
If an employee is showing symptoms of SARS, an employer may be within its rights to request that an employee seek a medical diagnosis prior to returning to work. Employers should not seek such certification from every employee who has simply traveled to an affected country. This issue should be addressed on a case-by-case basis, after dialogue with the employee and consideration of the legal issues involved.
OSHA And Retaliation/Whistleblower Laws
Employers should be aware that Section 5(a)(1) of OSHA, referred to as the General Duty Clause, requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Employers may be cited for violating the General Duty Clause if they do not take reasonable steps to abate or address a recognized hazard.
Companies should also be aware of Section 11(c) of OSHA, the anti-Retaliation provision, which prohibits retaliation against an employee who exercises OSHA rights. An employee who refuses to work when there is a “good faith” belief that exposure would put the employee in “imminent” danger of serious injury or death is protected from retaliation.
Such circumstances could include an employee who refuses either to come to work for fear of infection or to travel to an affected area. An employer will likely be on safe ground if it bases its decisions on current available information from the CDC and WHO (see contact information below).
Many states and the federal government also have whistleblower laws prohibiting employers from retaliating against employees who report suspected violations of health and safety laws.
Family Medical Leave Act
An employee who contracts SARS will have a “serious health condition” within the meaning of the FMLA. Thus, if the employer is subject to FMLA regulations, employees may be eligible for unpaid leave up to 12 weeks. Employees who request leave in order to care for a spouse, parent or child with SARS may also be eligible for FMLA leave.
Worker’s Compensation
An employee who sustains injury or illness arising out of or in the course of employment is entitled to worker’s compensation coverage, including reasonable and necessary medical care and disability. Worker’s compensation coverage will likely include employees who become injured or ill while working in the continental United States, as well as employees who become injured or ill while traveling for business outside the country.
Particular Industries
In addition to the various health and legal issues generally applicable to all employers, some industries may be more directly impacted by SARS or another contagious disease. They should consult the CDC and WHO for more detailed information about the impact of SARS on those industries. Some of these particularly affected include the healthcare, airline, hospitality and mortuary industries.
Helpful Hints And Recommendations
Employers should consider the following as a way to address contagious diseases:
• Designate one person to be the employer’s representative in order to have a consistent message and policy.
• Develop relationships with healthcare providers who can serve as a resource to your company.
• Encourage employee dialogue on issues of concern and be aware of a culture of panic or fear that may be developing and try to provide a forum for addressing employee concerns.
• Develop a written policy on travel and quarantine.
• Restrict non-essential travel to affected areas and utilize modern communications such as videoconferencing where possible.
• Advise employees to consult with their physician if they have any concerns.
• Stay abreast of the most up to date and available information by using the resources listed below.
Resources
• CDC www.cdc.gov/ncidod/sars Emergency Operations Center (770) 448-7100
• OSHA www.osha.gov/dep/sars
• WHO www.who.int/csr/sars/en
Richard D. Glovsky and Jeffrey A. Dretler practice employment law and litigation with the Boston law firm of Prince, Lobel, Glovsky & Tye, and provide advice and legal representation to employers and executive level employees on a broad range of employment issues. Mr. Glovsky is chair of the firm’s employment law group and Mr. Dretler is a senior associate in the group.
