When it comes to the threat of SARS, balancing employee rights and safety is essential to everyone's health—including your business's.
Nothing upsets the apple basket like threats of bioterrorism and contagious diseases. Last year, business owners added anthrax, West Nile, mad cow and, most recently, SARS, to their long list of things to worry about. Even though transmission rates for SARS are low compared to the common cold or influenza, the scary part is, if you get it, there's a chance you could die.
Last month, the World Health Organization (WHO) raised its estimate of the SARS fatality rate from 4 percent to 14 to 15 percent, incorporating data from the latest cases in Canada, China, Hong Kong, Singapore and Vietnam. But so far, defining a general rate of fatality has proved elusive, because victims' odds of survival depend on the area of the world where treatment was provided and on other factors such as their age and health.
"More people die every year of the flu than SARS," says Stephen Weatherhead, associate attorney for Mintz Levin Cohn Ferris Glovsky and Popeo PC in Boston. The fear factor can cause people to make poor choices, says Weatherhead, who advises business clients on everything from managing an actual SARS outbreak to fending off litigation from fearful employees.
Fear of catching the potentially fatal disease, along with fear of litigation from affected employees, has become a big issue for businesses that require travel to destinations such as Hong Kong and Singapore that have documented SARS cases. According to Weatherhead, if a traveling employee turns up with SARS and then gives it to a buddy in the next cubicle, then yes, that affected employee will get paid through worker's compensation. "That's a given," says Weatherhead.
Here's where it gets dicey: What if a business owner needs an employee to go on an urgent trip to Toronto and the fearful employee hedges? According to Weatherhead, an employee has a legitimate right, as outlined by the Occupational Safety & Health Administration (OSHA), to reject any assignment that poses an imminent threat. "If the employer takes [disciplinary] action," says Weatherhead, "the employee can file [suit] under OSHA."
But the quandary doesn't stop there. What if your best account executives just got back from a sales trip to Hong Kong and they turn up with a few common SARS symptoms--fever, headache and shortness of breath? If you send them home for the recommended 10-day isolation period, making them miss out on big commissions from a conference later that week, Weatherhead warns, they may be able to sue using the Americans with Disabilities Act because they're being penalized for a perceived disability. On the other hand, if you don't send a contagious employee home, then coworkers, or even customers, may be able to sue for reckless endangerment.
So how does a conscientious employer get out of this "damned if you do, damned if you don't" dilemma? "There's no real right answer," says Weatherhead. "The key is for the employer to act quickly, effectively and appropriately—to not overreact, because every case might be a little different." The trick is to balance the employer's rights with those of the employee. Some general SARS guidelines for employers:
Restrict business travel to Asia and other places held suspect by health organizations like the WHO and the Centers for Disease Control and Prevention. Require employees to regulate their temperature and place themselves under active 10-day surveillance and voluntary quarantine after any contact with a probable SARS case. Telecommuting or teleconferencing are often better options than making a suspect employee come to work. If a 10-day isolation period is deemed necessary, it's better to pay an employee for their time off than to risk litigation.
Information on everything from SARS symptoms and managing an actual outbreak to daily travel advisories can be found on the Web sites for the World Health Organization and the Centers for Disease Control and Prevention (CDC) or on the CDC hotline at (888) 246-2675.
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