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Trouble in the air: The legal ailments of sick-building syndrome

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in Employee Benefits Program,Employment Law,Human Resources

BY SUSAN K. LESSACK  and LAWREN H. BRISCOE, Pepper Hamilton LLP

Although it may seem like the far-fetched excuse of an employee hoping to take a few days off from work, a condition known as “sick building syndrome” (SBS) is real.

The World Health Organization recognized SBS in 1982. The syndrome describes situations in which building occupants experience adverse health effects that appear to be linked to time spent in a particular building, but are not linked to a specific cause. SBS can occur in both residential and commercial buildings and comprises a variety of symptoms that can affect people to different degrees. Although specific causes of SBS are unknown, inadequate ventilation, chemical contaminants from outdoor and indoor sources and biological contaminants have all been cited as causes or factors contributing to SBS.

Symptoms can vary among persons and across time, but the aggregate experience of affected people can provide a picture of the problem. Symptoms can be specific—itchy eyes, skin rashes and nasal allergy symptoms. They can be vague—fatigue, aches and pains. and sensitivity to odors. They may occur only in a particular room or zone, or may be widespread throughout the building.

Implications for employers: ADA

Some employees suffering from SBS have brought claims under the ADA, contending they are disabled and require some type of accommodation to be able to work. Courts have rejected such claims from employees who are simply unable to work in one particular location, because the employees have not been able to establish that they are “disabled” under the ADA’s definition. The law says an employee is disabled if a medical condition interferes with a major life function such as walking, eating, breathing or caring for oneself.

Even if the employee meets the ADA’s definition of disabled, courts have placed restrictions on the lengths to which an employer must go to provide the employee with a reasonable accommodation. For example, reassignment to a different location was a reasonable accommodation under the ADA in one case, despite the employee’s request for a new air-filtering system. Under the ADA, employees are entitled to a reasonable accommodation, not necessarily the best or most desired accommodation.

… and workers’ comp

Employees also have sought recovery for SBS-related illnesses under state workers’ compensation laws.

To show that the SBS-related illness is covered by workers’ compensation, an employee must establish a causal link between the illness and the building. That can be a high bar. In one such case, an employee was unable to prove there was a causal link between her symptoms and the dust and other allergens she said she was exposed to on the job. The result: no workers’ compensation benefits.

Other side effects

In addition to the time and costs associated with defending claims brought by SBS-suffering employees, SBS can have a detrimental effect on other aspects of an employer’s business.

SBS can reduce employee productivity and reliability. Employees working in a sick building generally use more sick days. Often when employees work in a sick building, they feel a sense of relief and renewed health after leaving work. This can lead to poor morale as well as high turnover.

_____________________________________

Susan K. Lessack is a partner at Pepper Hamilton LLP (www.pepperlaw.com), a Philadelphia-based, multipractice law firm with 450 lawyers in seven states and the District of Columbia. She concentrates her practice on employment counseling and employment litigation and can be contacted at (610) 640-7806 or lessacks@pepperlaw.com.

Lawren H. Briscoe, an associate in Pepper Hamilton’s Philadelphia office, concentrates her practice in labor and employment law matters.

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