The Equal Employment Opportunity Commission
("EEOC") has issued technical assistance guidance to help employers prepare for a potential pandemic of the H1N1 flu ("the swine flu"), without running afoul of the Americans with Disabilities Act
("ADA"). When employees become ill or travel to parts of the
world affected by certain illnesses, employers are often left
questioning how they may proceed to protect the workplace and its
employees, without violating individual rights.
The EEOC guidance discusses various areas under the
ADA that may be implicated by an employer's concerns about employee
exposure to the swine flu. The full version of the EEOC's
guidance ("Pandemic Preparedness In the Workplace and the Americans
with Disabilities Act") can be found at http://www.eeoc.gov/facts/pandemic_flu.html.
(Click here to read the EEOC Guidance).
Some of the most relevant points contained in the EEOC guidance are as follows:
• during an influenza pandemic, an employer may send employees home if they display flu-like symptoms.
• an employer may require new entering employees
to undergo a post-offer medical examination to determine their general
health status, if all entering employees in the same category are
required to undergo the medical examination.
• employers may ask employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat - but all information about employee illness must be maintained as a confidential medical record.
• measuring an employee's body temperature will generally be
considered a medical examination and is prohibited - unless there is a
widespread of influenza in the community, at which point employers
would be permitted to take an employee's temperature.
• employers may and should encourage employees with flu-like symptoms to stay at home.
• an employer may encourage employees to tele-commute (work from home) as an infection-control strategy during a pandemic.
• during a pandemic, an employer may require its employees to adopt infection control practices, such as regular hand-washing, and may also require its employees to wear personal protective equipment, such as face masks, gloves, gowns, etc.
• an employer may encourage employees to take the influenza vaccine but may not require employees to take the vaccine.
• an employer may ask an employee why he or she has been absent from work, even if the employer suspects the absence was for a medical reason.
• an employer may ask an employee about exposure to pandemic influenza after an employee returns from travel because such an inquiry is not disability-related.
• an employer may require an employee who has been away
from the workplace during a pandemic to provide a doctor's note
certifying fitness to return to work - such an inquiry is either
considered not disability related or, in the event of a severe
pandemic, considered a lawful disability-related inquiry.
With the flu-season fast approaching, the EEOC guidance
provides helpful advice for employers in complying with the ADA.
However, it does not address an employer's compliance with respect to
other EEO laws
and does not begin to address numerous other questions that may arise
or policies that may be impacted, by the swine flu. At a minimum,
employers should review their policies and practices to ensure they are
compliant with the new EEOC guidance.
Your Firm contact is ready to answer your questions relating to this new EEOC guidance and preparing for the flu season.
