| Establishing Boundaries |
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| EEOC Assistance with ADA-Compliance and H1N1 (Swine Flu) Preparedness |
By Leslie Zieren, Esq.
Consultant to this Program
 The specter of pandemic swine flu (the H1N1 influenza virus) has workplace implications that will strongly influence compliance with several laws. This article highlights some of the EEOC’s recently posted employer assistance recommendations for managing Americans with Disabilities Act (ADA) compliance in the face of rampant influenza.
The ADA protects qualified applicants and employees with disabilities from discrimination on the basis of disability. One aspect of this protection is the statutory regulation of when and how employers may require a medical examination or request disability-related information, whether or not the individual has a disability. This means the ADA affects how employers may request health information from employees about H1N1.
Once employment begins, an employer can only make disability-related inquiries and require medical examinations if the request is job-related and consistent with business necessity. Then, only supervisors, managers, first aid or safety personnel, and government officials who investigate compliance with the ADA are entitled to medical information. And, that information must be treated by the employer as a confidential medical record.
What, then, exactly, may an employer ask employees about medical conditions that could result in absenteeism during a pandemic?
The EEOC suggests the use of an “ADA-Compliant Pre-Pandemic Employee Survey.” To prepare for a pandemic, using this survey, an employer may gather personal information with broad questions not limited to disabilities. And, the EEOC website contains the following sample survey. To view the survey as well as other detailed information, please see http://www.eeoc.gov/facts/h1n1_flu.html.
What about new hires?
An employer may require entering employees to undergo a medical examination after making a conditional offer of employment but before the individual starts work, as long as all entering employees in the same job category must undergo such an examination.
To prevent the spread of the flu, may our organization require employees to work from home?
An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions. Telework also may be a reasonable accommodation. Take care that you do not choose which employees to report to the office and those to stay home using a discriminatory basis in violation of Title VII and other discrimination laws.
For those employees coming to work, requiring infection control practices such as hand washing and sanitizing, coughing and sneezing etiquette, and tissue usage and disposal, has no ADA implications. What about face masks, gloves, or gowns? This kind of equipment may be required by an employer as long as, for example, a person with a latex allergy is not required to use latex gloves.
Bottom Line:
The threat of pandemic H1N1 flu affecting your workplace is real. During the week ending September 5, 2009, the CDC reported that 97 percent of all influenza A viruses being reported to CDC were 2009 influenza A (H1N1) viruses.i Plan now how your organization can comply with the ADA, while impeding the spread of the flu and the minimizing the effect it could have on your workplace.
i During the week ending September 5, 2009, widespread influenza activity was reported by Guam and 11 states (Alaska, Arizona, Florida, Georgia, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, and Tennessee). Regional influenza activity was reported by Puerto Rico and 13 states (Alabama, Arkansas, California, Illinois, Kentucky, Minnesota, Nebraska, Nevada, New Mexico, Ohio, Texas, Virginia, and Washington). Local influenza activity was reported by the District of Columbia and 10 states (Colorado, Hawaii, Iowa, Kansas, Maine, Massachusetts, Montana, New Jersey, Oregon, and Pennsylvania). Sporadic activity was reported by 14 states (Connecticut, Delaware, Idaho, Indiana, Michigan, Missouri, New York, North Dakota, South Dakota, Utah, Vermont, West Virginia, Wisconsin, and Wyoming). No influenza activity was reported by two states (New Hampshire and Rhode Island).
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Have you ever found yourself in the position of serving as a “de facto” guardian to a young person?
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Yes
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56.90%
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No
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43.10%
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Total Votes: 1819
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