EEOC: Pandemic rules based on 'direct threat'

Employers still must consider ADA limits

By law, how far can you go in screening employees or altering leave policies during pandemic? The Americans with Disabilities Act (ADA), privacy and state leave laws still apply, limiting what employers can do, advises Nina Massen, JD, senior associate with the disability, leave and health management practice group of Jackson Lewis LLP in White Plains, NY.

"That's what makes managing through a pandemic rather more challenging for hospitals," she says. "The burdens on them are greater but the legal constraints are not fewer."

The Equal Employment Opportunity Commission (EEOC) released guidance to clarify the ADA-related constraints on employers during a pandemic (Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, www.eeoc.gov/facts/pandemic_flu.html).

According to the EEOC guidance, employers may not engage in "disability-related inquiries or medical examinations" unless the employee poses a "direct threat due to a medical condition ... that cannot be eliminated or reduced by reasonable accommodation."

Whether an influenza pandemic poses a "direct threat" depends on its severity, the EEOC says: "If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability related inquiries and medical examinations.

By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination."

The "direct threat" analysis may be different from community to community, as a wave of influenza hits and produces a greater burden, notes Massen. "A hospital would have to be able to make the argument that screening people was still job-related and consistent with business necessity," she says. Unionized hospitals need to make sure they have an open dialogue with union representatives, Massen advises. Collective bargaining agreements may limit what the hospital can do to alter work shifts and hours or even whether managers can work as frontline staff, she says. Hospitals also need to make sure they don't inadvertently create barriers for ADA-covered employees, Massen says. For example, if a separate dining area is created for employees working in an H1N1 unit, and there are steps leading to the area, the hospital must be able to accommodate employees with disabilities, she says.

Here is an excerpt from the EEOC guidance:

May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

During a pandemic, may an ADA-covered employer take its employees' temperatures to determine whether they have a fever?

Generally, measuring an employee's body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees' body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever.

When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?

No. These would not be disability-related inquiries. If the CDC or state or local 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 influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees, including those who may be at increased risk of developing complications. If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g., telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g., vision or mobility disabilities). If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.

May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

Yes. Telework is an effective infection control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

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