On May 4, 2009, the EEOC issued guidance regarding ADA-compliant workplace preparation strategies for the 2009 H1N1 flu virus (swine flu).
On May 4, 2009, the EEOC issued guidance regarding ADA-compliant workplace preparation strategies for the 2009 H1N1 flu virus (swine flu).
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against applicants and employees on the basis of a disability. Thus, employers may only request disability-related information or require a medical examination in certain circumstances. Additionally, the ADA requires employers to provide reasonable accommodations to employees with disabilities.
The guidance provides answers to frequently asked questions regarding disability-related inquiries, medical examinations, and reasonable accommodations related to preparation for a pandemic flu:
(1) How can employers ask employees about factors, such as chronic medical conditions, that may cause them to miss work in the event of a pandemic?
(2) May an employer require employees to have a post-offer test to determine their exposure to the flu virus?
(3) May an employer require its employees to adopt infection control practices (e.g., regular hand washing, coughing and sneezing etiquette) during a pandemic?
(4) May an employer require its employees to wear personal protective equipment (e.g., face masks, gloves) designed to reduce viral transmission?
(5) May an employer encourage or require employees to telework as an infection control strategy?
We have also recently distributed a Legal Alert discussing how employers may prepare for a pandemic flu outbreak. You can access this legal alert via the following link: http://www.fordharrison.com/shownews.aspx?show=4733
The Bottom Line:
The EEOC guidance provides additional information to assist employers in determining what types of disability-related inquiries are allowed, who they may require medical examinations from, and what types of reasonable accommodations are appropriate in the event of a pandemic flu virus.
More information regarding the H1N1 flu virus is also available on the CDC's web site, http://www.cdc.gov. If you have any questions regarding this issue or need assistance in ensuring your company is prepared for the contingency of a flu pandemic, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Isabella Lee, ilee@fordharrison.com or 404-888-3856.