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You are listening to the Disability Law Lowdown Podcast Show #40 with your host, Jacquie Brennan.

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Jacquie Brennan: Today’s podcast is about ADA compliant employer preparedness for the H1N1 flu virus, otherwise known as the swine flu.

The EEOC has published a paper on the ADA compliant employer preparedness for the H1N1 flu virus and I want to go over their recommendations. You can get more information about the H1N1 flu virus at cdc.gov. That’s CDC (as in Centers for Disease Control) dot gov. You can also get public health information and establish lies of communication with local public health authorities and community medical experts in advance of a pandemic at pandemicflu.gov.

But in terms of the ADA and the H1N1 flu virus, which is what we’re going to talk about today, there are several areas employers might want to prepare and think about what could possibly happen that could be considered discriminatory in terms of the Americans with Disabilities Act. As you probably know, Title One of the ADA protects applicants and employees from disability discrimination. Among other things, the ADA regulates when and how employers can require medical examinations or request disability related information from applicants and employees regardless of whether the individual actually has a disability. This requirement will affect when and how employers may request health information from applicants or employees regarding H1N1 flu virus.

Under the ADA, an employer’s ability to make disability related inquiries or require medical exams is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage, when you’re just interviewing an applicant, before any kind of offer has been discussed, the ADA prohibits all disability related questions and medical exams, even if they’re related to the job. Those cannot be asked up until the offer of employment has been made.

At the second stage, which is called post-offer, which is after the applicant is given a conditional job offer bit before they start to work, an employer can make disability related inquiries and conduct medical exams regardless of whether they’re related to the job as long as it does so for all entering employees in the same job category. So, for example, if you were interviewing two waiters for a job and one of them was coughing, you couldn’t say, I’m going to hire you both, but you, because of your cough, are going to have to get a medical exam. It would have to be something that you required for all employees in order to be compliant with the ADA.

In the third stage, which is after employment begins, an employer has the right to make disability related inquiries and require medical exams only if they are job related and consistent with business necessity.

The ADA requires employers to treat any medical information that they get from a disability related question or medical exam, including information from voluntary health or wellness programs, as well as any medical information voluntarily disclosed by an employee, all that has to be treated as a confidential medical record. Employers may share that information only in very limited circumstances with supervisors and managers on a need to know basis, with first aid and safety personnel and, of course, government officials investigating compliance with the ADA.

Now, there are some Frequently Asked Questions that the EEOC has been given and they have put these into this paper that they recently published about H1N1 so I’m going to go through those questions and what the EEOC says are good answers for those.

The first question is: In light of the ADA’s requirements, how many employers ask employees about factors, including chronic medical conditions, that may cause them to miss work in the case of a pandemic?

Okay, an employer can survey its workforce to gather information needed for pandemic preparation if the employer asks broad questions that are not limited to disability related questions. A question would not be disability related if it identified non-medical reasons for an absence during a pandemic like if you would have to miss because of mandatory school closures or curtailed public transportation. As long as you put those kinds of questions on an equal footing with medical reasons such as chronic illnesses that weaken immunity, then that’s okay.

They actually put together a sample ADA compliant survey that could be given to all employees before a pandemic. On this pre-pandemic employee survey, what happens is you would give the survey out and it would have one question really. What it says is, in the directions it says, “answer yes to the whole question without specifying the reason or reasons that apply to you, just check yes or no at the bottom.”

So you’re just checking yes or no one time, but the whole question reads: “In the event of a pandemic, would you be unable to come to work for any of the following reasons: if school or daycare centers were closed you would have to care for a child, if other services were unavailable you would need to care for other dependents, if public transportation were sporadic or unavailable you would be unable to travel to work, and/or you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus you would be advised by public health authorities not to come to work, for example pregnant women, people with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions, persons less than 65 years of age with chronic conditions or persons over 65 years of age.”

Out of all of those things, you just answer yes or no. So even if the person answers yes, the employer would not know which of those reasons applied to them, just that there might be reasons that the person could not come to wok during a pandemic.

Next question: May an employer require entering employees to have a medical test post-offer to determine their exposure to the influenza virus?

Yes, in limited circumstances only. The ADA allows an employer to require entering employees to undergo a medical exam after making a conditional offer of employment but before the person starts working as long as all entering employees in the same job category have to undergo that kind of an exam. The example they give is, “An employer in the international shipping industry implements its pandemic influenza preparedness plan when the World Health Organization and the Centers for Disease Control confirm that a new influenza virus to which people are not immune is affecting large numbers of people in multiple countries. Because the employer gives these medical tests post-offer to all entering employees in the same job categories, the examinations are ADA compliant.”

Next question: During a pandemic, may an employer require its employees to adopt infection control practices?

Yes. Requiring infection control practices such as regular hand washing, coughing and sneezing etiquette and tissue usage and disposal does not implicate the ADA.

The next question: May an employer require its employees to wear personal protective equipment like face masks, gloves or gowns designed to reduce the transmission of a pandemic virus?

Yes. An employer can require employees to wear personal protective equipment. However, where an employee with a disability needs a related reasonable accommodation under the ADA, like maybe non-latex gloves or gowns designed for people who use a wheelchair, then the employer should provide these, absent undue hardship.

The last question is: May an employer require or encourage employees to telework, that is, work from home or from another location, as an infection control strategy?

Yes. An employer may encourage or require employees to telework as an infection control strategy based on timely information from public health authorities about pandemic conditions. Telework may also be a reasonable accommodation. Of course, employers can’t single out employees to telework or to continue reporting to the workplace on the basis of anything that’s prohibited by any of the employment discrimination laws.

I hope that gives you a little more information about how employers can prepare for the H1N1 flu virus while also complying with the ADA. Thanks for tuning in.

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The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.





The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.