While the current outbreak of H1N1 Influenza is turning out (for now) to be less lethal than previously thought, the EEOC released guidance this week (available here) to help employers prepare for a possible pandemic and still comply with the ADA.
Some of the guidance is lifted from previous statements of the EEOC but applied to this situation. For example, the EEOC again reminds employers of the limits of making medical-related inquiries to employees:
Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.
The EEOC also goes out of its way to emphasize that there are ways an employer can legally survey its workforce before a pandemic strikes to allow it to be prepared. In fact, it provides a model survey for the employer to use.
Lastly, the EEOC addresses infection control measures and states what should be obvious: "Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."
It’s a helpful reminder to employers that even in times of crisis, we remain a nation under the rule of law. Let’s hope that this current outbreak wanes and that it does not reoccur in the fall in a more virulent form.