EEOC Technical Assistance Regarding the H1N1 Flu and ADA Compliance

Seasonal illnesses like the flu often create problems in the workplace, as employees are absent from work with greater frequency due to personal illness or to care for family members who are sick. If the experts are correct in their predictions, this year the flu season will be particularly harsh due to the emergence of the H1N1 (swine flu) virus. Therefore, it is prudent for employers to develop a plan for dealing with this situation. The U.S. Equal Employment Opportunity Commission recently issued a technical assistance document which provides guidance to employers in formulating strategies which are compliant with the Americans with Disabilities Act (ADA). The document can be obtained from the EEOC’s web site.

When employees request time off, an important issue arises regarding the extent to which employers may obtain medical information from the employee. While asking an employee to supply a simple doctor’s note to excuse an absence in accordance with a published and consistently-applied absence policy would not likely implicate the ADA, any request for additional information about the nature of the employee’s medical condition can certainly trigger the ADA’s requirements. The EEOC’s technical assistance document cautions employers that the ADA restricts when and how employers may request information from an employee or applicant regarding the H1N1 flu virus (or any other medical condition), regardless of whether the employee has a disability.

Under the ADA, an employer’s ability to make “disability-related inquiries” or require a medical examination is analyzed in three stages: pre-offer of employment; post-offer, and during employment. At the pre-offer stage, the ADA prohibits employers from asking any disability-related questions or requiring a medical exam. At the post-offer stage, employers can make such inquiries and require a medical exam, as long as it does so consistently for all entering employees in the same job category. Thereafter and during employment, the employer can only ask such questions or require medical exams if they are job-related and consistent with business necessity. Though not expressly stated in the technical assistance document, it seems reasonable to conclude that inquiries to employees about their exposure to or illness from H1N1 virus would satisfy the “job related and consistent with business necessity” requirement if they are based on the employer’s concern for the health of other employees in the workplace and need to reduce the risk of transmission.

In a helpful question and answer format, the technical assistance document addresses how employers can plan for widespread employee absenteeism in an ADA-compliant manner. For example, the document offers a sample “employee survey” that employers can use to gather personal information from employees about whether they would be able to report to work in the event of a pandemic. The document also discusses the circumstances under which an employer could require entering employees to submit to a medical test, at the post-offer stage, to determine their exposure to the flu virus. The document states that employers can require employees to adopt infection control practices during a pandemic, such as regular hand washing and wearing of personal protective equipment (e.g., face masks, gloves, etc). An employer can also encourage employees to telework as an infection-control strategy. Of course, such measures cannot be used to discriminate against employees or applicants on the basis of a protected status (including disability).

The EEOC’s technical assistance document thus offers timely guidance to employers regarding the legal implications of dealing with the H1N1 virus in the workplace. With what may be an active flu season ahead, employers should review their absence, health and safety, and other related policies now in order to ensure that they are equipped to handle a possible pandemic and are also ADA compliant.