The Equal Employment Opportunity Commission has issued some, although limited, guidance for employers preparing for the H1N1 (swine) flu virus. The guidance reminds employers of the limitations under the Americans With Disabilities Act (ADA) on medical examinations and requests for disability-related information, even from individuals who are not disabled. The technical assistance document, titled “ADA-Compliant Employer Preparedness for the H1N1 Flu Virus,” is available on the EEOC Web site at www.EEOC.gov/facts/h1n1_flu.html.
The document reminds employers that the ADA restricts when and how employers may ask disability-related questions of employees and applicants and require medical examinations. The EEOC specifically observes that “This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.”
Before any job offer is extended, employers are not permitted to ask any disability-related questions or require any medical exams. Such questions and exams are allowed once a conditional job offer is extended, but only if they are required for all entering employees in the same job category. After employment begins, disability-related inquiries and medical exams must be job-related and consistent with business necessity. Although the guidance does not provide any specifics on permissible inquiries related to the H1N1 flu virus, it is clear that employers must be prepared to justify any required examinations or inquiries into medical condition by explaining the business need. Employers must also ensure that any inquiries or examinations are no broader or more medically intrusive than is necessary to safeguard its work force and others against transmission of the virus.
The guidance also reminds employers that any information gathered from medical examinations or disability-related inquiries must be treated as a confidential medical record. Such information may be communicated only on a need-to-know basis to management, first aid and safety personnel, and government officials investigating compliance with the ADA.
The document answers a few “frequently asked questions” on planning for absenteeism and infection control and describes one permissible approach to determining which employees have circumstances that would make them unable to come to work in the event of a pandemic, including pregnancy or chronic medical conditions that create high risk for complications from exposure to the virus. It goes on to advise that employers may implement mandatory infection control practices such as regular hand washing, use of personal protective equipment such as face masks and gloves, and telework, as long as they reasonably accommodate disabled employees in the process (such as by providing non-latex gloves) and do not discriminate based on protected status (including disability) in the process.
The EEOC also issued a brief reminder that Title VII prohibits national origin discrimination, such as discrimination against Mexicans, in recognition that the earliest and most serious outbreak of the virus occurred in Mexico.