Some answers to emerging SARS questions

An employment lawyer's take on what SARS means for employers

The impact of severe acute respiratory syndrome (SARS) on the workplace is something many employers and employment lawyers are struggling with.

This is a particular hot issue in Ontario, given the fact most of the cases of SARS have been in the Toronto area. Under the province’s Occupational Health and Safety Act, every employee has the right to work in a safe and healthy environment.

This means that when one employee brings SARS into the workplace, he jeopardizes the entitlement of all employees to a safe and healthy workplace. Many questions have arisen as a result of this. Here’s a look at some common questions and answers.

Can employers compel employees to travel on business to some of the hot spot areas in the wake of the SARS crisis?

In recent weeks, many employers advised that non-essential travel should be prohibited.

But even when travel is essential, it is important the employee not feel as though he must attend a meeting, particularly if the meeting is to take place in one of the named hot spots for SARS. It should be a purely voluntary act on the part of the employee.

The employee should not feel as though there is any pressure whatsoever to attend, given the employer’s strict liability under the Occupational Health and Safety Act.

What about the employee who coughs? Does the employer have the right to ask that employee to enter into quarantine?

It is imperative that employers do not form knee-jerk reactions to an employee who coughs.

Health Canada has provided a list of questions, which should help determine whether or not the person may have exposure to SARS. Employers would be well-advised to obtain these lists and ask the employee all of the questions on the list.

If the employee answers yes to any of the questions, the employer will likely have the right to ask the employee to go into quarantine. The employer should also ask any employees who were in contact with that employee to quarantine themselves.

But if the employer does not pose these questions to the suspected employee, the employer may be singling out a person who may not have been in a high-risk area, or who may not have been exposed to someone with SARS. It is very important for employers not to act out of fear and use common sense.

What about those employees who refuse to attend work, given their fear of contracting SARS?

There are no easy answers to this question. Generally, if an employee is absent without any medical reason, the employer is entitled to consider that employee absent from work for non-medical reasons.

If the absenteeism continues then, at some point, the employer may consider the employee has been absent and is guilty of absenteeism. This may allow the employer to terminate the employee for cause.

But employers should remember that SARS is a very different situation from traditional illnesses. There is more fear about SARS than most contagious diseases. Therefore, it is important that employers maintain a sense of compassion before accusing an employee of absenteeism.

That employee may be simply experiencing fear and, therefore, employers can do much more for their employees through educating themselves and their employees.

Employers should take the time to reassure the employee they have taken all the necessary precautions with regard to SARS and they will do their utmost to prevent it from entering the workplace.

For more information about SARS and its impact on benefit plans, check out Natalie MacDonald’s “On Law” column in the upcoming Guide to Pensions and Benefits, distributed with the June 2 issue of Canadian HR Reporter.

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].

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