In October, the EEOC issued updated guidance for employers entitled “Pandemic Preparedness in the Workplace And The Americans With Disabilities Act” to provide technical assistance to employers addressing issues raised by the H1N1 influenza or other pandemics. The guidance reminds employers of key ADA provisions relevant during a pandemic: (1) the ADA regulates disability-related inquiries and medical examinations for applicants and employees; (2) the ADA prohibits excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (a significant risk of substantial harm even with reasonable accommodation); and (3) the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship).
The guidance also provides practical information, in the form of questions and answers, to help employers manage their workforce in an ADA-compliant manner before, during, and after a pandemic. For instance, during a pandemic the EEOC advises that employers may send employees home if they display flu-like symptoms, ask employees about their symptoms if they report feeling ill or call in sick, measure an employee’s body temperature during certain circumstances, encourage employees to work from home, and require infection control practices such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal. The guidance can be accessed on the EEOC website at http://www.eeoc.g ov/facts/pandemic_flu.html.
The U.S. Department of Labor has also published “Guidance on Preparing Workplaces for an Influenza Pandemic” which was developed by the Occupational Safety and Health Administration and focuses on employers’ obligation to protect employees’ health and safety. The guidance is intended for planning purposes and is not specific to a current influenza viral strain (such as H1N1). The guidance can be accessed on the DOL website at http://www.osha.gov/Publications/influenza_pandemic.html/