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I. Introduction
This
short technical assistance document answers basic questions about
workplace preparation strategies for the 2009 H1N1 flu virus (swine
flu) that are compliant with the Americans with Disabilities Act (ADA).
Because this situation is rapidly evolving, employers should consult
their local public health authorities and the Centers for Disease
Control and Prevention (CDC). For key facts on the H1N1 flu virus, see
www.cdc.gov.
Accurate and timely public health information is
critical to an effective and ADA-compliant pandemic plan. Employers
should establish lines of communication with local public health
authorities and community medical experts in advance of a pandemic. See
www.pandemicflu.gov.
II. Disability-Related Inquiries and Medical Examinations
Title
I of the Americans with Disabilities Act (ADA) protects applicants and
employees from disability discrimination. Among other things, the ADA
regulates when and how employers may require a medical examination or
request disability-related information from applicants and employees,
regardless of whether the individual has a disability. This requirement
affects when and how employers may request health information from
applicants and employees regarding H1N1 flu virus.
Under the
ADA, an employer's ability to make disability-related inquiries or
require medical examinations is analyzed in three stages: pre-offer,
post-offer, and employment.
* At the first stage (prior to an
offer of employment), the ADA prohibits all disability-related
inquiries and medical examinations, even if they are related to the job.
* At the second stage (after an applicant is given a conditional job
offer, but before s/he starts work), an employer may make
disability-related inquiries and conduct medical examinations,
regardless of whether they are related to the job, as long as it does
so for all entering employees in the same job category.
* At the
third stage (after employment begins), an employer may make
disability-related inquiries and require medical examinations only if
they are job-related and consistent with business necessity.
* The
ADA requires employers to treat any medical information obtained from a
disability-related inquiry or medical examination (including medical
information from voluntary health or wellness programs), as well as any
medical information voluntarily disclosed by an employee, as a
confidential medical record. Employers may share such information only
in limited circumstances with supervisors, managers, first aid and
safety personnel, and government officials investigating compliance
with the ADA.
See Disability-Related Inquiries & Medical
Examinations of Employees Under the ADA (2000) at
http://www.eeoc.gov/policy/docs/guidance-inquiries.html. See also
Enforcement Guidance: Preemployment Disability-Related Questions &
Medical Examinations (1995) at
http://www.eeoc.gov/policy/docs/preemp.html.
III. Frequently Asked Questions
A. Planning for Absenteeism
1.
In light of the ADA's requirements, how may employers ask employees
about factors, including chronic medical conditions, that may cause
them to miss work in the event of a pandemic?
An employer may
survey its workforce to gather personal information needed for pandemic
preparation if the employer asks broad questions that are not limited
to disability-related inquiries. An inquiry would not be
disability-related if it identified non-medical reasons for absence
during a pandemic (e.g., mandatory school closures or curtailed public
transportation) on an equal footing with medical reasons (e.g., chronic
illnesses that weaken immunity). Below is a sample ADA-compliant survey
that could be given to all employees before a pandemic.
ADA-Compliant Pre-Pandemic Employee Survey
Directions:
Answer "yes" to the whole question without specifying the reason or
reasons that apply to you. Simply check "yes" or "no" at the bottom.
In the event of a pandemic, would you be unable to come to work because of any of the following reasons:
* If schools or day-care centers were closed, you would need to care for a child;
* If other services were unavailable, you would need to care for other dependents;
* If public transport were sporadic or unavailable, you would be unable to travel to work, and/or;
* If you or a member of your household fall into one of the categories
identified by CDC as being at high risk for serious complications from
the pandemic influenza virus, you would be advised by public health
authorities not to come to work (e.g., pregnant women; persons with
compromised immune systems due to cancer, HIV, history of organ
transplant or other medical conditions; persons less than 65 years of
age with underlying chronic conditions; or persons over 65).
Answer: YES __________ NO __________
2.
May an employer require entering employees to have a medical test
post-offer to determine their exposure to the influenza virus?
Yes,
in limited circumstances. The ADA permits an employer to require
entering employees to undergo a medical examination after making a
conditional offer of employment but before the individual starts work,
if all entering employees in the same job category must undergo such an
examination.
Example A: An employer in the international
shipping industry implements its pandemic influenza preparedness plan
when the WHO and the CDC confirm that a new influenza virus, to which
people are not immune, is infecting large numbers of people in multiple
countries. Because the employer gives these medical tests post-offer to
all entering employees in the same job categories, the examinations are
ADA-compliant.
B. Infection Control in the Workplace
3. During a pandemic, may an employer require its employees to adopt infection control practices?
Yes.
Requiring infection control practices, such as regular hand washing,
coughing and sneezing etiquette, and tissue usage and disposal, does
not implicate the ADA.
4. May an employer require its employees to
wear personal protective equipment (e.g., face masks, gloves, or gowns)
designed to reduce the transmission of a pandemic virus?
Yes. An
employer may require employees to wear personal protective equipment.
However, where an employee with a disability needs a related reasonable
accommodation under the ADA (e.g., non-latex gloves, or gowns designed
for individuals who use wheelchairs), the employer should provide these
absent undue hardship.
5. May an employer encourage or require
employees to telework (i.e., work from an alternative location such as
home) as an infection control strategy?
Yes. 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.
Of course, employers must not single out
employees either to telework or to continue reporting to the workplace
on a basis prohibited by any of the EEO laws.
See generally EEOC Fact Sheet on Work at Home/Telework as a Reasonable Accommodation at http://www.eeoc.gov/facts/telework.html
The Americans with Disabilities Act Amendments Act of 2008
Effective
January 1, 2009, Congress amended the Americans with Disabilities Act
pursuant to the Americans with Disabilities Act Amendments Act of 2008
(ADA AA or Amendments). The EEOC will be revising its ADA regulations
to comply with these Amendments. With the ADA AA, Congress changed the
way that the ADA's statutory definition of the term "disability" should
be interpreted. The Amendments emphasize that the definition of
disability should be construed in favor of broad coverage of
individuals, to the maximum extent permitted by the terms of the ADA,
and generally shall not require extensive analysis. See
http://www.eeoc.gov/ada/amendments_notice.html. For the full text of
Titles I and V of the ADA, as amended, see Americans with Disabilities
Act of 1990.
The ADA AA does not change the ADA's restrictions on disability-related inquiries and medical examinations, discussed herein.
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