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Tools for Employers: Responding to SARS and Other 05/01/03 With the outbreak of SARS employers are being asked to deal with situations they may have not faced. In response, we have developed a set of tools to assist employers. Because we feel this is such a critical situation and that employers need to respond appropriately and swiftly in such situations, this information is being provided at no charge.
These tools include three items:
The sample policy is provided as a guideline and should be tailored to your organization's specific needs. As with all policies, we strongly recommend that your employment attorney review your materials prior to implementation. The implementation guidelines are provided to help assess situations. While policies attempt to address many possible situations, there are always exceptions and unusual circumstances, which need to be examined individually to ensure the organization takes the most appropriate course of action. Even when this particular threat of SARS passes, implementing a policy to deal with such situations means the organization will be prepared in the event of a future outbreak. This is general information, which should not be construed as legal advice. Please contact your attorney if you have specific concerns.
Sample Communicable Illness Policy This policy provides the framework for all members of our organization to deal with and/or respond to communicable illnesses/diseases at work. Its purpose is to provide the best possible protection for victims and potential victims of disease and, at the same time, to maintain the highest possible level of productivity. In order to do this, we must balance the rights of all employees. It is our expectation that employees will be sensitive to symptomology and utilize sound judgment in determining their level of illness, following guidelines provided by their doctors and Public Health information. The organization will follow Public Health information guidelines when available. Employees that learn they have an illness that has the potential to be passed on to co-workers or clients in the regular course of their work, need to disclose this to the [HR Manager or other designee]. The [HR Manager or other designee] will work with this employee to determine steps necessary to protect the disclosing employee and other employees (clients/customers, etc.). This policy is not designed to address the common cold or flu, which are covered under the organization's sick leave policy and procedures, but rather those illnesses or diseases that have been identified as being more serious in nature. (Organization name) recognizes that an employee's medical condition is confidential information and will treat it as such unless otherwise provided by law. Employees who are ill and qualify under other applicable laws, policies, and programs, such as Family and Medical Leave Act (FMLA), the American's with Disabilities Act (ADA), Workers Compensation, Short/Long Term Disability (STD/LTD), etc. will also be guided by those corresponding policies. Employees with a communicable disease or life threatening medical condition will be allowed to work as long as they can maintain acceptable performance and do not pose a health threat to themselves or others. The organization may periodically obtain medical counsel to evaluate the employee's health or the health risk to others. Employees who refuse to work with an employee with a life threatening medical condition or disease who does not pose a threat to others, may be subject to corrective action in accordance with policies, procedures and guidelines established for employee behavior and performance. The organization reserves the right to ask employees who show signs and symptoms of a communicable illness to seek medical evaluation and provide a medical release prior to returning to work when appropriate. The organization will work with the employee to determine if any accommodations need to be made or precautions taken to protect staff members (clients/customers, etc.). The organization will evaluate and determine accommodation, pay and benefits issues on a case-by-case basis depending upon the specific situation and applicable policies and laws, which may apply. Guidelines and Factors to Consider When Implementing the Communicable Illness Policy When implementing a policy about Communicable Illness and Disease, employers need to consider a number of very important factors. 1. The first factor is to balance the rights of the employee with the illness or disease, with the rights of other employees, customers, etc. Remember that employees who have serious illnesses have rights under a number of laws. These rights include:
Additionally, under the OSHA general duty clause, the employer must provide a safe environment for employees. This means that employees, who are well, have the right to not be exposed to an unsafe working condition, which could include an employee with a communicable illness. The challenge for you, as an employer, is to determine the level or risk posed. This is when it will be necessary for employers to have resources to help determine the level of risk. PLEASE NOTE: being informed about a certain health condition does not mean you should diagnose the condition. It means that you need to know enough about a condition to know when to seek additional advice. For example: knowing that certain conditions can only be passed through body fluids allows you to understand the risks related to a particular position. If your organization or the position does not deal with body fluids, this type of condition would not create a level of concern. Let medical authorities determine the diagnosis. 2. Follow Public Health Authority guidelines, such as those that address the current outbreak of Severe Acute Respiratory Syndrome (SARS). These guidelines can provide symptom information, travel guidance (particularly for work-related travel), reporting requirements and other important information. 3. If the illness or disease was caused by contact on the job, while traveling on the job, or is work-related, Workers Compensation provisions apply. This will also determine how compensation and benefits are handled. 4. If the ADA applies, reasonable accommodation may need to be made. For example, if the employee needs to be quarantined for 10 days, this is likely a reasonable accommodation. Allowing the employee to work from home may also be a reasonable accommodation. 5. If the employee is off of work, not due to a work-related situation, compensation and benefits will need to be determined. This determination should be made considering leave policies (FMLA, STD/LTD, etc.), paid time off (sick leave, vacation, etc.) that may be available, and employment status. If an employee is classified as exempt from the Fair Labor Standards Act they may need to be paid for any partial week worked, unless covered by FMLA. If an employee is covered by any employment or union contract you will need to factor in any requirements under the agreement. Factor into the determination any potential discrimination issues to ensure there is not differential treatment based on an illness/disease that is protected by law. 6. If the employee is quarantined, or required to be off work at the employer's discretion it may be best to pay the individual. We suggest you seek legal advice if you wish to utilize such discretion. 7. When requiring a medical release to return to work, consider if this is required of all other workers for illness that may not be protected under the ADA. If it is just required in this situation, it could be considered discriminatory if not job related or applied based on reasonable belief that a condition exists. Such requests should be based on objective evidence that an employee's ability to perform the essential functions of the job or that the employee will pose a direct threat due to a medical condition. Do not base such a request on a generalized assumption, not supported by some objective evidence. Examples that are more objectively based: Examples that are not objectively based:
8. If you have an employee who refuses to work because they are concerned about a co-worker's illness, you will need to evaluate the situation on a case-by-case basis. Refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under OSHA, however, employees do have the right to refuse to do a job if they believe in "good faith" that they are exposed to imminent danger. "Good faith" means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist. Reasonable grounds would not typically apply in a situation where medical evidence shows that the condition is not contagious, cannot be transferred under typical working conditions, or that safety precautions are not in place to prevent transfer, etc.
Resource Links Society for Human Resource Management
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HR Answers, Inc. 7659 SW Mohawk St. Tualatin, OR 97062 Toll Free: (877) 263-4476 Bellevue: (425) 454-6170 Fax: (503) 692-3772
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