The Americans with Disabilities Act (“ADA”) is related to pandemic preparedness in several ways.  First, the ADA regulates an employer’s disability-related inquiries and medical examinations for all applicants and employees.  Second, the ADA prohibits an employer from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat.  Third, the ADA requires that an employer provide reasonable accommodations for individuals with disabilities.

            The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance addressing various issues related to pandemic preparedness in the workplace and the ADA.  Some of the highlights of the guidance are discussed briefly below.  

A.      Before a Pandemic

•  An employer may not request that an employee disclose if he or she has a compromised immune system or chronic health condition that may make him or her more susceptible to complications of influenza.
• However, an employer may request that an employee disclose if he or she is likely to be unavailable for work (for medical and non-medical reasons) in the event of an influenza pandemic.  The guidance includes a sample Pre-Pandemic Employee Survey.   

 B.       During a Pandemic

•  An employer may require an employee to go home if he or she displays influenza-like symptoms at work.
• An employer may encourage employees to telework as an infection-control strategy.
• An employer may require employees to adopt infection-control practices, such as regular hand washing and proper tissue usage and disposal. 
• An employer may not require all employees to be vaccinated regardless of their medical conditions or religious beliefs. 

 C.       After a Pandemic

•  An employer may require employees who were absent from work during a pandemic to provide a doctor’s note certifying their fitness to return to work (although, as the EEOC notes, this may not be a practical approach). 

           Employers who want to review the EEOC’s guidance in its entirety may find it at www.eeoc.gov/facts/pandemic_flu.html.  Employers may also want to review the CDC’s Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season, which may be found at www.pandemicflu.gov/professional/business/guidance.pdf.  In addressing pandemic preparedness in the workplace, employers should also consider Title VII (with respect to national origin discrimination and religious accommodation) and any applicable state and local laws.

 Jessica L. Durbin is a partner with the law firm of Johnson, Killen & Seiler, P.A.  Ms. Durbin represents employers in labor and employment law matters.

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First, the revised regulations explain the impact of the NDAA.  As was noted above, under the NDAA, eligible employees may be entitled to military family leave in certain situations.  Specifically, the final rule provides that eligible employees may qualify for FMLA leave for any qualifying exigency arising out of the fact that a parent, spouse, or child is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.  A “qualifying exigency” includes, among other things, military events and related activities, childcare and school activities, and post-deployment activities.  It is important to note that this type of leave applies only to service in the Reserves and National Guard.

Eligible employees may also qualify for FMLA leave to care for a covered servicemember with a serious injury or illness incurred in the line of duty on active duty if the employee is the parent, spouse, child, or next of kin of the servicemember.  It is important to note that this type of leave applies to service in the regular Armed Forces, as well as the Reserves and National Guard.  In addition, this type of leave may extend for up to 26 weeks in a single 12-month period.

Second, the revised regulations make it clear that employees may voluntarily settle or release FMLA claims without court or Department of Labor approval.  Employees may not, however, prospectively waive FMLA rights.

Third, the revised regulations clarify the definition of a “serious health condition.”  Specifically, the final rule provides that if an employee is taking leave involving more than three consecutive, full calendar days of incapacity plus two visits to a health care provider, the two visits must occur within thirty days of the first day of incapacity (unless extenuating circumstances exist).  In addition, the initial visit must occur within 7 days of the first day of incapacity.  The rule also provides that if an employee is taking leave involving more than three consecutive, full calendar days of incapacity plus “a regimen of continuing treatment,” the initial visit to a health care provider must occur within 7 days of the first day of incapacity.  Finally, with respect to chronic serious health conditions, “periodic visits” to a health care provider is defined as at least two visits per year.

Fourth, the revised regulations clarify and consolidate various employer notice requirements.  The final rule also strengthens employer notice requirements so that employers will provide more comprehensive information to employees about their FMLA rights and obligations.

These are just some of the changes of which employers should be aware.  Other important changes relate to intermittent leave, the substitution of paid leave, the medical certification process, fitness-for-duty certifications, and perfect attendance awards.  In light of these changes, employers should update their FMLA policies, post a revised FMLA poster, utilize revised FMLA notice and certification forms, and possibly even revise their standard separation agreements.  Employers should review their FMLA policies, forms, and practices with their human resources staff and legal counsel.

Jessica L. Durbin is a partner with the law firm of Johnson, Killen & Seiler, P.A.  Ms. Durbin represents employers in labor and employment law matters.

Employers that are covered by the Americans with Disabilities Act of 1990 (“ADA”) should be aware of restrictions on the questions they may ask job applicants. Under the ADA, an employer may not ask an applicant disability-related questions until after it has made a conditional offer of employment. Unfortunately, it can be difficult for employers to determine whether a question is a disability-related question. What follows are some examples of permissible and impermissible questions at the pre-offer stage.

 An employer may ask whether an applicant can perform listed job functions with or without reasonable accommodation. However, an employer generally may not ask whether an applicant will need a reasonable accommodation to perform the job. For instance, a job application may not ask, “Do you need a reasonable accommodation to perform this job?” or “Can you do these functions with ___ without ___ (check one) reasonable accommodation?”

An employer may ask whether an applicant can meet its attendance requirements. An employer may also ask about an applicant’s prior attendance record. For instance, an employer may ask, “How many days were you absent from work last year?” However, an employer may not ask, “How many days were you absent from work last year because of illness?” An employer also may not ask an applicant about his or her workers’ compensation history.

An employer may ask an applicant about his or her current illegal drug use. An employer may ask an applicant about his or her prior illegal drug use, so long as the questions are not likely to elicit information about past drug addiction. For instance, an employer may ask, “Have you ever used illegal drugs?” or “When is the last time you used illegal drugs?” However, an employer may not ask, “How often did you use illegal drugs in the past?” or “Have you ever been addicted to drugs?” or “Have you ever been treated for drug addiction?”

An employer may ask an applicant about his or her current lawful drug use, so long as the questions are not likely to elicit information about a disability. For instance, an employer may not ask, “What prescription medications are you currently taking?” or “Have you ever taken AZT?”

Employers should review the questions asked in applications and interviews with their human resources staff and legal counsel to ensure that all questions are consistent with the ADA.

Jessica Durbin is a Director with the law firm of Johnson, Killen & Seiler, P.A. Ms. Durbin represents employers in employment law and labor relations matters.