It may sound like an employee's stunt to wrangle some time off from work, but sufferers of Sick Building Syndrome (SBS), an actual malady, can develop a spectrum of health problems that appear linked to time spent in a particular building.

Inadequate ventilation, chemical contaminants from outdoor and indoor sources, and biological contaminants can all be causes of or contributing factors to SBS' wide variety of symptoms, which affect sufferers to different degrees. Symptoms can be specific (itchy eyes, skin rashes, and nasal allergy symptoms) or more vague (fatigue, aches and pains and sensitivity to odors). Symptoms may occur only in a particular room or zone, or throughout the building, but usually are alleviated once the sufferer leaves the building.

The World Health Organization, which first recognized SBS in 1984, estimates that up to 30 percent of new and remodeled residential and commercial buildings worldwide may be making employees sick.


What Does This Mean for Employers?

Some employees suffering from SBS have brought claims under the Americans with Disabilities Act (ADA), contending that they are disabled and require some type of accommodation to be able to work. But labor and employment lawyers Susan K. Lessack, a partner in Pepper Hamilton LLP, and Lawren Briscoe, an associate at the firm, note that "courts have rejected such claims from employees who are simply unable to work in one particular location, because the employees are not able to establish that they are 'disabled' within the meaning set forth under the ADA. "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 that employee with a reasonable accommodation. They add that while employees also have sought recovery for SBS-related illnesses under state workers' compensation laws, an employee must establish a causal link between the illness and the building to show that the SBS-related illness is covered by workers' compensation.

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


What Can Be Done About Sick Building Syndrome?

Lessack notes that if an employee complains of symptoms related to SBS, an employer can take several remedial steps:

-- First, talk to the employee: identify the source of the employee's symptoms, and learn from the employeeand his or her doctorwhen and where those symptoms occur.

-- Next, employers should test the building's air quality to determine if there are any environmental issues that should be remedied. "If the air quality tests are normal and the employee's symptoms seem localized to a particular building, there is probably no requirement to provide a reasonable accommodation, Briscoe notes. "Of course, the employer may decide to provide a reasonable accommodation anyway. For example, improving the ventilation in the area where the employee works may be a relatively inexpensive solution.

-- If air quality tests reveal a problem and the employee's difficulties are not limited to one building, the employer should discuss with the employee some ways that the employee can be accommodated.

-- If the air quality tests reveal a problem and the employee is not disabled (because, for example, the employee's symptoms are triggered only in one building), the employer may want to consider doing something about the air quality problem, even though it has no duty to reasonably accommodate the employee.

-- Finally, if remedial measures are warranted, the employer should implement them and then periodically monitor the remedies' effectiveness.





Pepper Hamilton LLP (www.pepperlaw.com) is a multi-practice law firm with more than 500 lawyers in seven states and the District of Columbia. The firm provides corporate, litigation and regulatory legal services to leading businesses, governmental entities, nonprofit organizations and individuals throughout the nation and the world. The firm was founded in 1890.