Health and Safety: SARS Fears Reach the Workplace; Smart Steps You Can Take to Protect Employees and Steer Clear of Legal Trouble

Concern over Severe Acute Respiratory Syndrome has spread around the world, and many employers are scrambling to take precautionary measures to keep SARS out of the workplace. But it’s crucial as you do so to be aware of state and federal antibias, wage-and-hour, medical privacy, and workers’ compensation rules that may come into play. We’ve compiled a practical overview of how to protect your employees and avoid legal pitfalls.

Practical Measures

Here are steps you can take to help minimize the risk of SARS spreading among your workers:

1. Keep abreast of developments. Employers should monitor the Centers for Disease Control and World Health Organization websites for the latest medical information.

    

2. Understand symptoms. These include a fever of 100.4 degrees or above and one or more respiratory symptoms, such as a dry, nonproductive cough, shortness of breath, or difficulty breathing.

    

3. Encourage smart health practices. According to the CDC, SARS appears to be spread primarily by droplets emitted during coughing. Encourage workers to follow the CDC recommendations to wash hands often using soap and water or alcohol-based hand sanitizers and cover the mouth and nose with a tissue when coughing or sneezing.

    

4. Educate staff. Inform employees about SARS symptoms and advise them to stay home and call their doctor if they believe they might be infected. Encourage employees to visit the CDC and WHO websites to learn more about the illness.

    

5. Take reasonable precautions. Consider barring business travel to regions affected by SARS. Provide safe hygiene information to employees who must travel. For information on business travel alternatives and how to manage workers who have fears about business travel. Also check the WHO website atwww.who.int/csr/sars/travel/en for information about travel and SARS.

400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.

Avoiding Problems

Here’s a look at the workplace legal concerns and obligations that can arise with respect to the SARS outbreak:

 

• Disability. State and federal disability-bias laws prohibit you from inquiring about an employee’s medical condition or requiring a medical examination unless you have a reasonable belief the condition either impairs the worker’s ability to perform the essential job functions or poses a direct threat to others.If an employee has recently traveled to a SARS-affected region and has SARS symptoms, you would probably be within the law to request that they seek a medical release before returning to work—but it’s best to seek legal advice first. Similarly, if public health authorities have quarantined an employee, you can probably require a medical release before the person returns to work. On the other hand, if an employee who has recently traveled to a SARS region is asymptomatic, they need not be excluded from work according to the CDC’s May 14, 2003, guidelines..It’s still unclear whether an employee with SARS would qualify as disabled under state and federal law. Until this is sorted out, the safest practice is to assume the illness is covered and engage in an interactive process with an infected employee to determine whether they require an accommodation.

   

• Race bias. Make certain that any workplace policies or procedures you adopt because of SARS don’t discriminate against employees based on their race or national origin, such as employees of Asian descent. And be sure all policies and practices are enforced uniformly.

   

• Wage and hour. If you decide to bar someone from the workplace because of a SARS concern, consider how the employee’s time out of the office will be treated. Many employers pay employees during a quarantine period without requiring that paid leave be used. You should also consider whether the employee can telecommute while quarantined. Remember, that under state and federal wage-and-hour rules, if an employee who is classified as exempt performs any work in the week, you must pay them their full salary for that workweek. What’s more, if the travel to a SARS-hit region was work-related, California Labor Code Section 2802—which requires you to indemnify employees for losses they incur while performing their jobs—might require you to pay an employee, whether exempt or nonexempt, if you impose a quarantine.

   

• Workers’ compensation. If the travel was work-related, there’s a possibility that workers’ comp may cover absences resulting from SARS.

   

• Medical privacy. Under California law, you must keep an employee’s medical information confidential. This is true whether you learn about it from a doctor or from the employee directly. You can only disclose this information, on a need-to-know basis, with the employee’s signed authorization. Also, be sure all employee medical information is kept in a confidential file separate from routine personnel records.