REPORT FROM THE U.S.—While U.S. health officials have gained clarity about the severity of the H1N1 influenza, or swine flu, outbreak recently, many hoteliers still are left grappling with legal obligations in the face of the current and future epidemics.

That task was much simpler in the past than it is today, according to Stephen Barth, attorney and founder of HospitalityLawyer.com.

“Historically, hotels had to accept everybody who wanted to stay there,” he said. But over time, “… courts have said there are valid reasons for excluding people from staying at your hotel.”

Exceptions include a lack of available rooms, a guest’s inability to pay, if a guest is drunk or disorderly, and if a guest poses a safety or health hazard to other guests.

“The duty of the innkeepers is not just to that individual guest,” Barth said. “It extends to all the other guests and potential guests, as well as the employees.”

But identifying guests who pose a serious health hazard to others is easier said than done. It’s almost impossible to tell whether or not someone has a highly communicable disease, such as swine flu, just by assessing physical symptoms, said Matt Carroll, director of the Cleveland Department of Public Health in Cleveland, Ohio.

“You can’t assume anything just from somebody’s symptoms,” he said. “The only way to confirm that a person has the illness is through a sophisticated test.”

And because hoteliers can’t conduct that test on a guest-by-guest basis, they’re beholden to the guest’s word. 

“We can look for the physical manifestations, but even still, you still are subject to the guest’s honesty,” Barth said. “If you say, ‘Are you suffering form this?’ and if the guest says no, it really puts the innkeeper in a dilemma.”

But that doesn’t mean hoteliers can’t or shouldn’t inquire about illnesses during epidemics.

Asking the right questions

Balancing the obligation to provide a safe environment for current guests with the rights of incoming guests must be sought through careful, confidential questioning, explained Jim Abrams, senior member of the Global Hospitality Group of law firm Jeffer Mangels Butler & Marmaro.

“If you get somebody who looks like he or she is seriously ill … especially in a case when there’s an epidemic going around, reasonable care would dictate that … it’s fair to ask the question,” he said.

That conversation could be a legal minefield if not done carefully, however. Questions must be done confidentially and quietly. If a guest is exhibiting signs of illness, Abrams suggested pulling them aside into a manager’s office to ensure privacy.

The other issue for hoteliers is being careful not to stereotype or discriminate based on race or national origin, Barth said. Even though the outbreak originated in Mexico, it’s not appropriate to ask only people of Latino descent, for example.

If a hotel implements a policy of asking guests about the presence of an illness, associates have to ask every incoming guest to avoid possible discrimination charges, he added.

Addressing the situation

In the unlikely event guests begin to show signs of illness or approach a hotelier fearing they’ve contracted a communicable disease, the hotelier must take action to avoid possible litigation.

A good place to start is with a phone call to the local health department or Center for Disease Control and Prevention. Throughout the process, the hotelier must treat the guest with sensitivity.

“You can’t treat people like a contagious disease,” Barth said.

Hoteliers should call for medical emergency personnel and take other measures to address the needs of the guest. Though the guest in question could react negatively to such intervention, hoteliers should fall back on their duty to protect the public’s health and the health of the other guests, Barth said.

It’s important to note “duty” doesn’t necessarily mean complete protection. Even if another guest contracted the illness during their stay, hoteliers likely would avoid litigation if they simply acted responsibly and displayed reasonable care.

In addition to addressing a possibly contagious guest, reasonable care might also include such measures as placing hand sanitizer in every room, hanging signs urging guests to wash their hands and cover their mouths when sneezing and coughing, and properly maintaining and sanitizing public areas such as pools and hot tubs.

“Innkeepers are not the insurers of guests’ safety,” Barth said. “Innkeepers have the duty to act with reasonable care. By seeking guidance and advice when they know or should know there’s a potential problem, they are using reasonable care—assuming they follow the guidance.”