Guest Article

(From the May 18, 2009 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Employers Need to Consider the Americans with Disability Act in Preparing for H1N1 Flu

The Equal Employment Opportunity Commission (EEOC) issued a short technical assistance document aimed at helping employers comply with the Americans with Disabilities Act as they prepare for the H1N1 flu virus. Although crafted specifically in the context of the H1N1 pandemic, the guidance would be useful under other public health scenarios in which employers need to plan for absenteeism or take steps toward infection control in the workplace.

The Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination, and regulates when and how employers may request disability-related information. An employer may make disability-related inquiries and require medical examinations of an employee only if they are job-related and consistent with business necessity. Any medical information obtained from a disability-related inquiry or medical examination -- as well as any medical information voluntarily disclosed by an employee -- must be kept confidential. Employers may share the information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

Planning for Absenteeism

In planning for absenteeism, the EEOC guidance makes clear that employers may survey the workplace to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries. A sample ADA-Compliant Pre-Pandemic Employee Survey is provided to illustrate how the rule would apply. For example, a survey could ask employees whether, in the event of a pandemic, they would be absent from work for any one of several reasons -- including because the employee is in a category identified by the CDC as being at high risk for serious health complications -- as long as:

Infection Control

The EEOC guidance also makes clear that infection control practices, such as hand washing, coughing and sneezing etiquette, etc., do not implicate the ADA. An employer may also encourage or require employees to telework as an infection control strategy, as long as the employer does not single out particular employees to telework or to continue to report to the workplace on a basis prohibited by any of the equal employment opportunity laws.

The guidance is available on the Equal Employment Opportunity Commission website at: http://eeoc.gov/facts/h1n1_flu.html.

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations. If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Mark Neilio 202.378.5046, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955. Copyright 2009, Deloitte.