Rules Murky On Suspected SARS Exposures

An employee returns from a business trip to Asia and has a slight cough. Is it your job as a manager to send him or her home and require a SARS-free doctor's report before putting out the welcome mat again? Attorney Frank Alvarez, the head of law firm Jackson Lewis' disability management practice, says employers must be careful in managing these situations. "Employment decisions must be based on objective medical evidence or the most current medical knowledge, but there does not appear to be a consensus concerning the medical risks posed by employees who have traveled to the affected areas," he says. "Employers are caught between a rock and a hard place on this one." Alvarez says the Equal Employment Opportunity Commission (EEOC) may take the position that requesting asymptomatic employees to submit to medical examinations violates the Americans With Disabilities Act (ADA), which prohibits medical inquiries or examinations that are not job related and consistent with business necessity. A medical inquiry is generally considered "job related and consistent with business necessity" if there is a reasonable basis to believe that continued employment may create a "direct threat." However, ADA regulations define a direct threat as a significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation, Alvarez says. Travel alone may be insufficient to justify a medical examination or inquiry under this standard. Employers should consider talking to such employees to determine if additional facts exist that would suggest exposure but must do so within the guidelines of the ADA, the law firm suggests.