Question:

With all the talk about the flu this year, I’m wondering what I can do to prepare for an outbreak and to address the situation if one occurs. Is there anything that I can or cannot do with regard to concerns about the flu in my workplace?

Answer:

Employer concerns about the flu are very real. The Centers for Disease Control and Prevention (CDC) estimates that every individual who comes to work with H1N1 will infect 10% of their coworkers with the virus. In addition, businesses may experience employee absenteeism rates of as much as 20-25% for up to four straight months because of both the H1N1 and seasonal flu viruses. Despite these daunting statistics, according to a recent survey conducted by the Pandemic Prevention Council, 25% of organizations have yet to put a plan in place to address a pandemic flu outbreak in their workplace.

In an effort to assist employers, the federal Equal Employment Opportunity Commission (“EEOC”) recently issued information to help employers prepare for a potential influenza (H1N1) pandemic in a way that is consistent with the Americans with Disabilities Act (“ADA”). This document, entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” addresses ADA issues that may be implicated by employer concerns about employee exposure to the flu, including disability-related inquiries and medical examinations, “direct threat” assessments, and reasonable accommodations.

According to the EEOC guidance, before a flu pandemic occurs, an employer is not permitted to ask an employee if he or she has a health condition (such as a compromised immune system) that could make him or her more vulnerable to the flu. This type of question may disclose the existence of a disability, and is therefore prohibited unless there is some evidence of a “direct threat” within the meaning of the ADA. A “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

In the context of pandemic influenza, the EEOC guidance requires that a finding of direct threat be based on the most current medical knowledge and evidence, such as information from the CDC or other health authorities. The finding must be based on an assessment of the individual’s ability to safely perform the essential functions of his/her job after considering the imminence of the risk, the severity of the harm, and the availability of reasonable accommodations to reduce the risk below the direct threat level. The EEOC advises employers to be careful to consider all of the information available before concluding that an applicant or employee poses a direct threat in the context of a flu pandemic.

The EEOC guidance permits employers to ask employees whether they are likely to be unavailable for work in the event of a flu pandemic. This question is not considered to be disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic. The EEOC has also issued a pre-pandemic survey which includes an inquiry as to whether an employee is in a “high risk” category for complications from the flu, without specifying the category that an employee might fall under.

The EEOC guidance also includes the following helpful tips:

  • During a flu pandemic, employers may ask employees if they are experiencing flu-like symptoms (e.g., fever, chills, cough, sore throat), and may send employees home if they display such symptoms.
  • Employers may not ask an employee who does not have flu-like symptoms whether he/she has a medical condition that could make them vulnerable to complications from the flu.
  • Employers should encourage employees with flu-like symptoms to stay at home to prevent the spread of the virus to coworkers.
  • An employer may ask an employee about exposure to pandemic influenza after an employee returns from travel. An employer may also require an employee who has been away from the workplace during a pandemic to provide a doctor’s note certifying their fitness to return to work.
  • The EEOC recommends that employers encourage (but not require) employees to get a flu shot.

For more information on the EEOC’s guidelines, visit the following website:
http://www.eeoc.gov/facts/pandemic_flu.html.
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