Thursday, October 8, 2009
Although not every employer comes under U.S. Equal Employment Opportunity Commission regulation by the American with Disabilities Act, most do.
This week, the commission released updated guidelines regarding potential flu pandemic issues for ADA-covered employers, both those with a disability and others:
Q. Can an employer send employees home if they display flu symptoms during a pandemic?
A. Yes. The Centers for Disease Control and Prevention says employees who become ill with flu symptoms at work during a pandemic should leave the workplace.
Q. During a pandemic, how much information can an employer request from employees who report feeling ill at work or who call in sick?
A. Employers may ask such workers if they are experiencing flu symptoms, such as fever or chills accompanied with a cough or sore throat. Employers must keep that information confidential.
If the swine flu becomes severe, those questions, even if disability-related, are justified by a reasonable belief the severe form of flu poses a health threat to the individual or others.
Q. During a pandemic, can employer take its employees' temperatures to determine if they have a fever?
A. Generally, such action is considered a medical examination. If pandemic flu symptoms become more severe than now, health authorities may decide employers may measure employees' body temperature. However, some people with flu do not have a fever.
Q. When an employee returns from travel during a pandemic, does an employer have to wait until that person develops flu symptoms to ask questions about exposure to pandemic flu during the trip?
A. No. If public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic flu symptoms, a boss may ask whether employees are returning from such locations, even if the travel was personal.
Q. During a pandemic, can an employer ask employees without flu symptoms to disclose if they have a medical condition that could make them especially vulnerable to flu complications?
A. Not at this stage of the H1N1 flu. As well, medical examinations of employees without symptoms is prohibited by the Americans with Disabilities Act. However, under current pandemic conditions, employers should allow staff with flu symptoms to stay home, which will benefit all employees including those who may be at increased risk of developing complications.
If, however, the pandemic worsens, employers may reasonably conclude that employees will face a direct threat if they get the flu. Only then can businesses ask disability-related questions or require medical exam of healthy-appearing employees to identify those at higher risk of flu complications.
Q. Can a supervisor encourage employees to work from home as an infection-control strategy during a pandemic?
A. Yes. Telecommuting is an effective infection-control strategy that is also considered a reasonable accommodation.
In addition, employees with disabilities that put them at high risk for complications can ask to telecommute to reduce their chances of infection during a pandemic.
Q. During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Q. Can a business require its employees to wear personal protective equipment -- face masks, gloves or gowns -- designed to reduce the transmission of the flu virus during this swine flu outbreak?
A. Yes. However, when an employee with a disability needs an accommodation under the ADA, such as non-latex gloves or gowns designed for individuals who use wheelchairs, management should provide these whenever possible.
Q. Can a boss force all employees to get a flu shot regardless of medical conditions or religious beliefs during a pandemic?
A. No. Generally, employers should encourage employees to get the vaccine rather than demanding they get it.
Q. During a pandemic, must an employer continue to provide reasonable accommodations for employees with disabilities unrelated to the pandemic, barring undue hardship?
A. Yes. An employer's responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can he or she lawfully exclude that worker from employment or employment-related activities.
In addition, if an employee with a disability needs the same reasonable accommodation at a remote work site she or he has under normal working conditions, the employer should provide that accommodation, absent undue hardship.
In the event of such hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.
Q. During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
A. Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
Q. Can a supervisor ask staff who have been sick with the flu to provide a doctor's note certifying fitness to return to work?
A. Yes. As a practical matter, however, doctors and other health-care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty notes.
New documentation methods may be necessary, such as asking local clinics to provide a form, a stamp, or an e-mail to certify an individual does not have swine flu.