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Attorney cautions against improper SARS responses
Health care risk managers should exercise caution when implementing SARS-related work restrictions and other responses to the deadly virus, says Kent Jonas, JD, a labor and employment attorney with the firm of Thelen, Reid & Priest in San Francisco. Acting hastily might result in a lawsuit or charges of federal labor violations, he warns.
The San Francisco area has a large population of Asian descent and many international companies, so many local employers are dealing with the legal implications of taking SARS precautions. Jonas advises following the guidelines from the Centers for Disease Control and Prevention (CDC), but he cautions that there still are gray areas.
"If you follow those guidelines I think you’ll be safe but it’s not an absolute defense against any and all claims," he says. "That’s very good footing if you can say you did what the CDC told you to, but there are still areas where you can run afoul of the law."
Employers may feel pressured to take precautionary measures to protect the health and safety of their employees, he says, such as requiring them to undergo physical or medical examinations or requiring certain employees to stay home. For instance, many employers have closed their Asian offices and required employees returning from China to stay at home for periods of time. But Jonas says "employers should be aware that absent individual consent and specific employee authorization, precautionary actions can violate employment discrimination, confidentiality, and privacy laws. Employers should therefore be careful about mandating medical examinations, inquiring about an employee’s physical condition, or taking other precautionary measures without first consulting their attorneys."
Requiring employees to stay at home when they are suspected of having SARS could be risky, Jonas says. "I’m not sure that’s justified. If you can find justification for that in the CDC guidelines, that’s one thing. But if you’re just being very cautious and want to play it safe by having people stay home, that may not be a good idea. But it’s usually with pay, so I don’t think people will protest all that much."
Jonas notes that health care employers also can rely on the General Duty Clause enforced by the Occupational Safety and Health Administration (OSHA), which requires employers to provide a safe workplace. "If you have government advice that people in certain categories pose a danger to others in the workplace, there’s at least a pretty argument that you have to send them home to comply with OSHA."
ADA and Title VII must be considered
Jonas lists these other areas of risk:
• The Americans with Disabilities Act (ADA)
The ADA, along with some state laws such as the California Fair Employment Housing Act, prohibit discrimination against employees with actual or perceived physical or mental disabilities. President Bush added SARS to the list of communicable diseases for which quarantine may be used under section 361(b) of the Public Health Service Act, but Jonas says employees infected, or suspected of having been infected, may nonetheless qualify for protection under disability discrimination laws.
"SARS is a newly discovered disease, and therefore, it is still undetermined whether it qualifies as a disability protected under the ADA," he says. "Even if SARS is not a disability, the ADA still prohibits employers from requiring medical examinations of employees, unless such examinations are shown to be job-related and consistent with business necessity."
Temporary illnesses are not disabilities, so Jonas says SARS probably doesn’t fall into the disability category. "But it’s a very gray area. For instance, many cancers will make people disabled under these definitions. So I think the conservative view is to treat employees suspected of having SARS as if they are disabled and certainly not to stereotype people by treating them as having SARS or being dangerous just because they’ve been to China."
Courts have held that protecting the health and safety of employees or shielding them from significant risks of communicating infectious diseases may constitute a defense against alleged violations of these laws, so some SARS precautions may be exempt. Jonas says it would be reasonable to argue that the risk of SARS contagion endangers the health and safety of employees, and identification of infected employees may constitute a "business necessity."
But on the other hand, Jonas notes that the courts have held that mere fear and unsubstantiated suspicion of infectious disease will not suffice as a defense to a claim of ADA violations. He suggests you consult counsel before requiring diagnostic or other tests.
• Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination based on race, color, religion, sex or national origin. This law can become an issue with SARS because the disease is found mostly in Asian countries, and therefore you may find that staff with Asian backgrounds are most affected by your precautions.
Under Title VII of the Civil Rights Act of 1964, requiring an employee or a prospective employee to take or pass a physical examination may constitute an unlawful practice, unless it can be shown that physical requirements are job related. Potential Title VII claims may arise if mandatory physical examinations discriminate against certain classes of people because they disclose physical infirmities more prevalent in one race (or sex) than another, or because they affect only those employees of a certain race, national origin, or sex.
• Confidentiality of employee health records
The ADA requires that any information relating to the medical condition or history of an employee must be kept in medical files separate from general personnel information and must be treated as confidential.
"For example, if employees of Asian descent travel to countries affected by the SARS contagion more frequently than other employees, subjecting them to physical examinations could expose an employer to Title VII liability," Jonas says. "Employers should consider testing an employee only when there is an objective reason to believe that his or her presence in the workplace may cause a health hazard for others."
In addition to employment discrimination and confidentiality laws, employers should be aware of employees’ privacy rights against mandatory examinations or inquiries about their physical or mental condition. In California, for example, individuals have a constitutional right to privacy against intrusions by both state and private actors. This is another reason employers should require medical tests only where there is a demonstrable business necessity for them and should consult counsel before acting.