Information regarding the H1N1 virus (otherwise known as “Swine Flu”) is becoming clear, including what it is, how it is caused, and precautions people should take to avoid becoming infected. However, many questions remain about what practical steps business owners can and cannot take to safeguard themselves, their staff, and their customers.
For example, what liabilities might a hotelier face for refusing accommodations to guests who appear ill? What legal implications might an employer face for not training and/or protecting its employees? Finally, what practical steps should hoteliers be taking to deal with the current virus (or future pandemics)? This post addresses Washington law and provides answers to the questions above.
The Swine Flu does not present hoteliers with any unique legal duties.
Regardless of your jurisdiction, hotelier legal duties arising from Swine Flu are much the same as they are with respect to other infectious diseases. Given the fact that all people and things are now admittedly “global,” innkeepers should be clear about what their obligations are to provide accommodations to people with infectious diseases. The same is true with respect to guests who are already in the hotel who are discovered to have an infectious disease.
With some exceptions, hoteliers may refuse accommodations to guests who appear to have Swine Flu.
Laws applicable to hoteliers, or innkeepers, derive from principles developed in medieval England, when it was unsafe to be on the road at night, and travelers needed the safety and comfort of an inn or a road house. In medieval times, innkeepers had strict liability for failing to protect their hotel guests and their property. These rules and traditions were carried over to the U.S., where, even before the advent of civil rights statutes, lodging operators have been obligated legally to provide accommodations to all who request them unless they have sufficient legal grounds to refuse to do so. This is generally the law in most, if not all, states. There are exceptions, however.
For example, the law in Washington State is implied via hoteliers’ common law duty to receive travelers unless, among other things, the hotelier reasonably believes the guest will bring in something that would create an unreasonable danger or risk to others. In other states the law may be codified, such as California’s Penal Code Section 365, which makes it a misdemeanor for a hotel to refuse to give accommodations to someone unless the hotel has “just cause or excuse” to do so.
In most jurisdictions the law recognizes that hoteliers have a right to refuse accommodations to those who have an infectious disease. Again, this right derives in part from the underlying legal obligation that lodging operators have to protect their other guests. Not surprisingly, under the common law hoteliers have a similar right to evict a guest who contracts a contagious disease that is spread easily.
Duties owed to existing guests (and staff) do not impose on hoteliers an affirmative duty to inquire about the medical status of prospective guests.
No case in the U.S. has been found that requires hoteliers to make inquiries regarding the physical state of its guests. Indeed, asking for such information may expose the business to unnecessary legal exposure and constitute an invasion of privacy, depending on the circumstances. For example, a guest might be able to assert a legitimate claim for humiliation, negligent/intentional infliction of emotional distress, or a similar harm, depending on exactly how the hotelier handles a particular situation.
This is a sensitive situation. Regardless of how it obtains the information, if the hotelier learns about a guest’s health, care must be taken to maintain that information in confidence or the hotelier risks incurring liability for invasion of privacy, infliction of emotional distress, or some similar tort.
Be careful! Hoteliers should avoid overzealously or wrongfully identifying persons as having infectious diseases.
The Americans with Disabilities Act (and similar Washington State laws applicable to labor and consumerism) might treat someone with an infectious disease as having a “disability.”
In such a case, the hotelier must weigh carefully its obligation to accommodate the disabled individual while still fulfilling its obligation to protect the other guests in the hotel. The Americans with Disabilities Act allows a business to refuse to accommodate a person with a disability if to do so would pose a “direct threat” to the health and safety of others.
Do not forget that hoteliers may owe separate legal duties to their staff.
The Washington Industrial Safety and Health Act (“WISHA”) uses a “Bloodborne Pathogens Standard” (WAC 296-823) that provides some rules that may apply to this situation. For example, bedding and linens that contain bodily fluids must be treated as biohazardous materials and handled in strict accordance with the regulation. Among other things, employers are required to make sure that training is provided with respect to the standard and to take steps if there is a specified incident. Employers also need to integrate this standard into their ongoing injury and illness prevention protocols.
Hoteliers operating on tribal reservations are held to similar standards, although existing via federal enforcement of the Occupational Safety and Health Act (“OSHA”), and not via WISHA enforced by Washington State’s Labor & Industries.
Finally, regardless of the jurisdiction, all employers owe a duty to provide employees with a safe place to work. It could be argued that failure to take steps to exclude or remove people with Swine Flu (or similar dangerous diseases) might breach that duty.
Actions to take:
Of course, no two situations will be similar and hoteliers should consider the immediate personal safety of its guests and staff when deciding its course of action. One suggestion to err on the side of caution and contact the Washington Department of Health or similar entity if a guest or employee appears to be very ill and the hotelier is not sure whether or not it is evidence of an infectious, contagious, or communicable disease.
If a guest becomes injured or ill, whether with Swine Flu or otherwise, the hotel has a duty to treat the guest with consideration due to a sick person or to take “reasonable steps” to provide assistance. In Washington State and a number of other jurisdictions the hotel is not obligated to render medical attention; instead, the hotel is required to take reasonable steps, which are usually, and best, accomplished by contacting appropriate medical personal as soon as possible.
Although not required in Washington State, some jurisdictions may require hoteliers who know that a guest has a contagious or infectious disease to notify local health officials.
In the meantime, hoteliers should contact its local Department of Health and implement the steps that they recommend. These agencies are going to be the most informed about the current and ongoing status of Swine Flu, and they will provide the best information as to what hotels should be doing to minimize the risks. These agencies will be in the best position to provide information as to what personal protective equipment might be appropriate, cleaning and sanitizing measures that should be implemented, warnings that should be given, and other related topics.
Helpful Resources:
Information for this post was collected from several sources, including the Washington Department of Health, the Occupational Safety & Health Administration, the Washington State Department of Labor & Industries, and the Hotel Law Blog, which is a great resource for California-specific law on this topic.