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american lawyer media news service San francisco-When word got around a Bay Area office that a couple of employees were on their way back from a business trip to China, panic-stricken workers staged a walkout. At another California company, an employee recently refused to take a sales trip to Sweden. And a woman’s plans to adopt a child from China were briefly jeopardized when her company’s management learned of her intentions. These are examples of the situations employment law attorneys are now dealing with as a result of the epidemic of severe acute respiratory syndrome, or SARS. In the few months since SARS began to spread across the globe, businesses have scrambled to shield their workers from the virus. But fighting SARS in the workplace raises a number of thorny legal issues, from disability discrimination to medical privacy rights. For employment lawyers, this has meant balancing sometimes divergent legal and public safety priorities in the face of a disease that’s still a mystery. “Right now, it definitely is raising some novel questions and some challenging legal issues. And it’s requiring a good deal of self-education,” said Victor Schachter, an employment law partner at Mountain View, Calif.’s Fenwick & West. During the past several weeks, law firms including Fenwick; San Francisco’s Littler Mendelson; Chicago’s Seyfarth Shaw; and O’Melveny & Myers have all issued advisories alerting their clients about the legal ramifications of how they cope with SARS. Fenwick has even held a pair of breakfast symposiums that focused on SARS and drafted a SARS policy for its clients. And worried clients have contacted employment attorneys with a steady stream of inquiries. “There hasn’t been a day that’s gone by that I haven’t dealt with some SARS-related issue,” said Jeffrey Tanenbaum, head of Littler Mendelson’s occupational safety and health practice. Barring employees In one recent case, a pregnant employee in the offices of one of Tanenbaum’s clients voiced concerns about working alongside a colleague who had just returned from Hong Kong. The client, as other companies across the country have done recently, asked its traveling worker to stay home for 10 days (the SARS incubation period). In order to provide a safe working environment, many businesses have temporarily barred employees returning from certain countries from entering the workplace. But while such quarantine policies may be conservative from a medical standpoint, they can open up a legal can of worms. With no generally available SARS diagnosis test, determining who to lock out is not always a scientific process. And the decision can be especially contentious if an employee was traveling on a personal vacation and might not get paid during the resulting quarantine period. “The basic rule of thumb is that you want to err on the side of safety,” said Tanenbaum. The problem, he added, “is that can perhaps give rise to a claim of discrimination. So you have to make sure that you’re not discriminating on the basis of national origin or race.” Workers who have traveled to SARS-afflicted regions could also have certain protections under the Americans With Disabilities Act and similar provisions in California’s Fair Employment and Housing Act. It’s still not clear whether SARS meets the definition of a disability under either statute, but the mere fact that an individual is perceived as having a disability can be enough to trigger some protections. Thus, a company which takes the precautionary measure of sequestering an employee returning from China could be liable for a disability discrimination claim. “This particular disease doesn’t fit into neat little categories,” said Mark A. Lies II, a partner in Seyfarth Shaw’s Chicago office. “There are gray areas.” So far, attorneys at various firms say they’re not aware of any workplace discrimination claims that have resulted from SARS quarantines, but nobody dismisses the potential for litigation. Meanwhile, employers are also confronting workers who refuse to board planes and go on business trips for fear of SARS. “I’ve had it happen at least a half-dozen times. That’s including not only going to China, but also going to Canada,” said Lies. Ordinarily, such insubordination is ground for termination or other disciplinary measures, but under the federal Occupational Safety and Health Act, employees can refuse to work without fear of retaliation if there is “imminent danger.” Lawyers disagree over whether geographic regions that have been tagged with travel alerts and advisories by the World Health Organization and the U.S. Centers for Disease Control and Prevention qualify as imminently dangerous. For now, some employment attorneys are counseling their clients to accommodate balking workers by postponing their travel or temporarily assigning them to other duties. Of course, these kinds of appeasement policies will be tested by how long the SARS crisis lasts and the marketplace demands of resuming normal business operations. And as a body of case law on SARS develops during the next few years, employment attorneys will have more guidance to act on. “It’s an evolving area, so it’s going to take some time to see how this shakes out,” said D. Gregory Valenza, managing partner of Jackson Lewis’ San Francisco office. “If the disease goes away very quickly, this is going to become a nonissue.”

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