Responding to SARS

Unfortunately, employers have been provided with limited, and sometimes conflicting, guidance. Employers have a duty to provide a safe workplace for all employees under OSHA regulations, but there is no regulation directly on point. There are specific OSHA regulations and guidelines governing other communicable illnesses such as TB and blood borne pathogens such as HIV or HBV, with which certain employers must comply. But to date there is no SARS-specific regulation under OSHA. In the absence of such a specific regulation, the OSHA general duty clause applies. This, in essence, requires an employer to provide a safe workplace in whatever manner is reasonably necessary.

However, despite this duty of employers to provide a safe workplace, there are also some limitations on the company's ability to respond. Employers must be careful to avoid discrimination ' including discriminating against an individual who is disabled or perceived as disabled. Employers must continue to meet a number of other legal obligations as well, which include issues that arise not just with SARS but also with other communicable diseases.

Taking all of this into account, we believe that employers are best advised to issue a written communicable illness policy and response plan that covers SARS, as well as other communicable diseases that are readily transmitted in the workplace. For many workplaces, this would include active TB or SARS, but not something like HIV, which is not easily transmittable through typical workplace activities in most workplaces. Our experience in writing such policies is that they need to address at least the following:

• What illnesses, or exposure to illnesses, must employees disclose to the employer, and when and how should such disclosure be made?
• When should ill employees stay home, when will ill employees be sent home, and when can the employees return?
• When will an employer require a quarantine of ill employees or those who have been exposed to others who have been ill?
• Will employees be paid for the time spent in quarantine?
• What benefits are available to employees?
• What, if any, travel or other limitations will be imposed?
• What procedures need to be in place to address all of these matters on a case-by-case basis under often fluid and uncertain conditions?

Wage & Hour and Employee Benefits Implications

If an employee becomes ill while traveling for a work assignment, that employee is likely to be eligible for benefits under the employer's workers' compensation program, although the exact nature of the work being performed by the employee at the time of transmission, and the nature of the illness may well affect the coverage determination.

If an employee becomes ill as a result of personal travel, or other non-work-related exposure, the employee is likely to be eligible to use sick leave, PTO, vacation, and perhaps FMLA leave and disability leave, depending on the employer's own policies and the degree of illness. If no sick leave is available, it is possible that a non-exempt employee could be required to take the time off without pay. This is discussed in more detail below. Provided the employer has a bona-fide sick-leave policy, an exempt employee who has either not yet accrued sick-leave benefits or has exhausted sick leave, may have his or her salary docked only for complete days of absence for illness (unless partial day absences are required by the FMLA).

If an employee is not ill, but as a result of travel for a work assignment, quarantine is 1) required by a governmental agency; or 2) suggested by a governmental agency; or 3) deemed an advisable precaution by the employer, many employers will want to consider providing that employee with work assignments that can be performed at home. If this is not feasible or appropriate, the employer may want to place the employee on administrative leave. Whether such leave is paid or unpaid leave will vary depending upon the employee's exempt status, the employer policies, and restrictions imposed by state law.

If the employee is non-exempt, and no sick leave, PTO or vacation benefits are available, it is possible that the non-exempt employee may be required to take the time off without pay. An exempt employee must be paid his or her salary if the employee performs any work in the workweeks in which the administrative leave occurs. If an exempt employee is quarantined for a complete workweek, and performs no work in that week, it is possible that the employee may not need to be compensated. An exempt employee may choose to use sick leave, PTO or vacation during this time, provided the employer's policies and applicable state law permit the use of such benefits.

For example, in some states, an employer may not require an employee to use vacation when the employer initiates the employee's absence. Thus, if an employer requires an employee to stay away from work, the employer may not require the use of vacation. However, an employee may choose to use accrued sick leave, PTO or vacation benefits if permitted by the employer's policies and applicable state law.

Although it may be lawful, we generally do not recommend unpaid leave for any employee who is quarantined as a result of a work related exposure. This is particularly true if the decision to quarantine is made at the employer's discretion rather than at the behest of the government.

If the employee is put on administrative leave for quarantine purposes resulting from non-work related exposure, the law is unclear as to whether the leave can be without pay. We believe that if quarantine is required by a governmental agency, it is likely, but not certain, that the leave can be without pay subject to the salary basis rules for exempt employees noted above. If quarantine is recommended but not required by a government agency, the risk that government agencies or the courts would find that the leave must be paid is greater, but we believe the better answer in most states is that the law does not require that such a leave be paid. Lastly, the risk of an adverse decision would seem to be greatest if an employee is quarantined solely at the employer's discretion and is given unpaid leave.

Implications for Employment Contracts

Employers with collective bargaining agreements or other contracts of employment must review those contracts before adopting and enforcing a communicable illness policy, particularly before requiring the use of PTO or imposing administrative leave without pay. Such contracts may limit an employer in how such a policy or its terms may be implemented. And an employer with a collective bargaining agreement may have a bargaining obligation with regard to the adoption of the policy or its terms.

Disability Discrimination Law Implications

Under the Americans with Disabilities Act and similar state laws, disability related inquiries and medical examinations of employees are limited to situations where the inquiry or examination is shown to be 'job related and consistent with business necessity.' The restrictions on medical inquiries and examinations apply to all employees, and not just those with disabilities. These restrictions raise concerns when someone is required to stay off work unless, or until, they can prove they do not pose a risk of contagion in the workplace.

Such a policy could be viewed as evidence that the employee is 'regarded as' disabled by the employer. Secondly, an inquiry and request for a medical release could be viewed as violating the statutory restrictions on medical inquiries to employees. Generally, a disability-related inquiry or medical examination of an employee will be viewed as 'job-related' and consistent with business necessity, when the employer has 'a reasonable belief,' based on objective evidence, that: 1) an employee's ability to perform the essential functions will be impaired by the medical conditions; or 2) the employee will pose a direct threat due to a medical condition.

There appear to be three situations in which the employer would want the employee to undergo a medical examination, and obtain a medical release before returning to work when they have been exposed to a communicable illness.

The first situation, when a public agency quarantines an employee, would seem to present minimal risk of violating ADA or state laws if the employer requires the employee to provide a medical release before returning to work. In that situation the employer would have reasonable objective evidence upon which to rely that the employee poses a direct threat to the health of others.

Second, if a relevant public agency recommends, but does not require that the employee be quarantined, the employer conditioning a return to work on a medical release should be viewed as job related and consistent with business necessity. This case again would be based on relevant objective factors, such as the recommendation of a public agency.

The third situation is less clear. If a public agency does not quarantine an individual or recommend that the person be self-quarantined, there would seem to be a greater risk that the employer conditioned an employee's return to work on a medical release. A request that the employee obtain a medical examination and medical release before returning to work could be viewed as based not upon objective evidence, but upon a generalized assumption that someone traveling to a specific area would be infected with SARS. Unless there is other objective evidence, eg, the person is showing some symptoms of the illness in question, such a request carries with it a risk that it could be deemed unlawful.

Other Protected Classifications

It is possible that a particular outbreak of a communicable illness might disproportionately affect members of a protected classification (ie, race, national origin, etc.). Employers need to be cognizant of this fact and make sure that they are not unilaterally discriminating against such groups. Evidence of a communicable illness policy that covers all communicable illnesses and not just one that disproportionately affects a particular protected group is helpful here. Specific examples of non-discriminatory enforcement will also be very important.

Conclusion

SARS is a world health crisis that raises particular challenges in the American workplace. We can only hope that the crisis passes quickly and quietly. In the interim, employers are well advised to remain vigilant and become educated about the disease and its manifestations and the appropriate legal and health-related steps they should prudently take in response.

Jeffrey M. Tanenbaum and Marjorie Fochtman are Shareholders in the San Francisco office of Littler Mendelson.

But for the war in Iraq, the outbreak of SARS would undoubtedly have been the lead news story for the first half of 2003. Thousands of people have been infected to date, and there have been a number of fatalities from this new illness. It is apparently highly contagious (under at least some circumstances) and potentially deadly. As of press time, the CDC (Centers for Disease Control) had issued a travel health alert for visitors to and from Mainland China, Hong Kong, Vietnam, and Singapore, and President Bush had signed an executive order adding SARS to a list of seven other communicable diseases for which a person can be quarantined by public health authorities. The great seriousness of the other diseases on the list (plague, diphtheria, cholera, infectious tuberculosis, smallpox, yellow fever, and hemorrhagic fever [eg, Ebola virus]) gives a sense of the level of concern with which SARS is viewed by at least some in the medical community and government. SARS has reached the United States, although as of the date of publication, it is uncertain how fast, serious, and widespread the SARS outbreak will be in this country.

SARS poses particular concerns for employers for several reasons beyond the obvious need to protect employees who may be at risk and the need to address employee concerns: it is possible that SARS, or at least some strains of it, may be both easily transmittable in the workplace and very serious; medical experts are still searching for a test to detect its presence, as well as a vaccine; the incubation period after exposure but before symptoms appear is believed to be at least 10 days; and early symptoms can mimic less severe respiratory problems.

Occupational Safety And Health Obligations

Unfortunately, employers have been provided with limited, and sometimes conflicting, guidance. Employers have a duty to provide a safe workplace for all employees under OSHA regulations, but there is no regulation directly on point. There are specific OSHA regulations and guidelines governing other communicable illnesses such as TB and blood borne pathogens such as HIV or HBV, with which certain employers must comply. But to date there is no SARS-specific regulation under OSHA. In the absence of such a specific regulation, the OSHA general duty clause applies. This, in essence, requires an employer to provide a safe workplace in whatever manner is reasonably necessary.

However, despite this duty of employers to provide a safe workplace, there are also some limitations on the company's ability to respond. Employers must be careful to avoid discrimination ' including discriminating against an individual who is disabled or perceived as disabled. Employers must continue to meet a number of other legal obligations as well, which include issues that arise not just with SARS but also with other communicable diseases.

Taking all of this into account, we believe that employers are best advised to issue a written communicable illness policy and response plan that covers SARS, as well as other communicable diseases that are readily transmitted in the workplace. For many workplaces, this would include active TB or SARS, but not something like HIV, which is not easily transmittable through typical workplace activities in most workplaces. Our experience in writing such policies is that they need to address at least the following:

• What illnesses, or exposure to illnesses, must employees disclose to the employer, and when and how should such disclosure be made?
• When should ill employees stay home, when will ill employees be sent home, and when can the employees return?
• When will an employer require a quarantine of ill employees or those who have been exposed to others who have been ill?
• Will employees be paid for the time spent in quarantine?
• What benefits are available to employees?
• What, if any, travel or other limitations will be imposed?
• What procedures need to be in place to address all of these matters on a case-by-case basis under often fluid and uncertain conditions?

Wage & Hour and Employee Benefits Implications

If an employee becomes ill while traveling for a work assignment, that employee is likely to be eligible for benefits under the employer's workers' compensation program, although the exact nature of the work being performed by the employee at the time of transmission, and the nature of the illness may well affect the coverage determination.

If an employee becomes ill as a result of personal travel, or other non-work-related exposure, the employee is likely to be eligible to use sick leave, PTO, vacation, and perhaps FMLA leave and disability leave, depending on the employer's own policies and the degree of illness. If no sick leave is available, it is possible that a non-exempt employee could be required to take the time off without pay. This is discussed in more detail below. Provided the employer has a bona-fide sick-leave policy, an exempt employee who has either not yet accrued sick-leave benefits or has exhausted sick leave, may have his or her salary docked only for complete days of absence for illness (unless partial day absences are required by the FMLA).

If an employee is not ill, but as a result of travel for a work assignment, quarantine is 1) required by a governmental agency; or 2) suggested by a governmental agency; or 3) deemed an advisable precaution by the employer, many employers will want to consider providing that employee with work assignments that can be performed at home. If this is not feasible or appropriate, the employer may want to place the employee on administrative leave. Whether such leave is paid or unpaid leave will vary depending upon the employee's exempt status, the employer policies, and restrictions imposed by state law.

If the employee is non-exempt, and no sick leave, PTO or vacation benefits are available, it is possible that the non-exempt employee may be required to take the time off without pay. An exempt employee must be paid his or her salary if the employee performs any work in the workweeks in which the administrative leave occurs. If an exempt employee is quarantined for a complete workweek, and performs no work in that week, it is possible that the employee may not need to be compensated. An exempt employee may choose to use sick leave, PTO or vacation during this time, provided the employer's policies and applicable state law permit the use of such benefits.

For example, in some states, an employer may not require an employee to use vacation when the employer initiates the employee's absence. Thus, if an employer requires an employee to stay away from work, the employer may not require the use of vacation. However, an employee may choose to use accrued sick leave, PTO or vacation benefits if permitted by the employer's policies and applicable state law.

Although it may be lawful, we generally do not recommend unpaid leave for any employee who is quarantined as a result of a work related exposure. This is particularly true if the decision to quarantine is made at the employer's discretion rather than at the behest of the government.

If the employee is put on administrative leave for quarantine purposes resulting from non-work related exposure, the law is unclear as to whether the leave can be without pay. We believe that if quarantine is required by a governmental agency, it is likely, but not certain, that the leave can be without pay subject to the salary basis rules for exempt employees noted above. If quarantine is recommended but not required by a government agency, the risk that government agencies or the courts would find that the leave must be paid is greater, but we believe the better answer in most states is that the law does not require that such a leave be paid. Lastly, the risk of an adverse decision would seem to be greatest if an employee is quarantined solely at the employer's discretion and is given unpaid leave.

Implications for Employment Contracts

Employers with collective bargaining agreements or other contracts of employment must review those contracts before adopting and enforcing a communicable illness policy, particularly before requiring the use of PTO or imposing administrative leave without pay. Such contracts may limit an employer in how such a policy or its terms may be implemented. And an employer with a collective bargaining agreement may have a bargaining obligation with regard to the adoption of the policy or its terms.

Disability Discrimination Law Implications

Under the Americans with Disabilities Act and similar state laws, disability related inquiries and medical examinations of employees are limited to situations where the inquiry or examination is shown to be 'job related and consistent with business necessity.' The restrictions on medical inquiries and examinations apply to all employees, and not just those with disabilities. These restrictions raise concerns when someone is required to stay off work unless, or until, they can prove they do not pose a risk of contagion in the workplace.

Such a policy could be viewed as evidence that the employee is 'regarded as' disabled by the employer. Secondly, an inquiry and request for a medical release could be viewed as violating the statutory restrictions on medical inquiries to employees. Generally, a disability-related inquiry or medical examination of an employee will be viewed as 'job-related' and consistent with business necessity, when the employer has 'a reasonable belief,' based on objective evidence, that: 1) an employee's ability to perform the essential functions will be impaired by the medical conditions; or 2) the employee will pose a direct threat due to a medical condition.

There appear to be three situations in which the employer would want the employee to undergo a medical examination, and obtain a medical release before returning to work when they have been exposed to a communicable illness.

The first situation, when a public agency quarantines an employee, would seem to present minimal risk of violating ADA or state laws if the employer requires the employee to provide a medical release before returning to work. In that situation the employer would have reasonable objective evidence upon which to rely that the employee poses a direct threat to the health of others.

Second, if a relevant public agency recommends, but does not require that the employee be quarantined, the employer conditioning a return to work on a medical release should be viewed as job related and consistent with business necessity. This case again would be based on relevant objective factors, such as the recommendation of a public agency.

The third situation is less clear. If a public agency does not quarantine an individual or recommend that the person be self-quarantined, there would seem to be a greater risk that the employer conditioned an employee's return to work on a medical release. A request that the employee obtain a medical examination and medical release before returning to work could be viewed as based not upon objective evidence, but upon a generalized assumption that someone traveling to a specific area would be infected with SARS. Unless there is other objective evidence, eg, the person is showing some symptoms of the illness in question, such a request carries with it a risk that it could be deemed unlawful.

Other Protected Classifications

It is possible that a particular outbreak of a communicable illness might disproportionately affect members of a protected classification (ie, race, national origin, etc.). Employers need to be cognizant of this fact and make sure that they are not unilaterally discriminating against such groups. Evidence of a communicable illness policy that covers all communicable illnesses and not just one that disproportionately affects a particular protected group is helpful here. Specific examples of non-discriminatory enforcement will also be very important.

Conclusion

SARS is a world health crisis that raises particular challenges in the American workplace. We can only hope that the crisis passes quickly and quietly. In the interim, employers are well advised to remain vigilant and become educated about the disease and its manifestations and the appropriate legal and health-related steps they should prudently take in response.

Jeffrey M. Tanenbaum and Marjorie Fochtman are Shareholders in the San Francisco office of Littler Mendelson.