By Jessica L. Durbin, Esq.

 

            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.