The U.S. Equal Employment Opportunity Commission
This short technical assistance document answers basic questions about workplace preparation strategies for the 2009 H1N1 flu virus (swine flu) that are compliant with the Americans with Disabilities Act (ADA). Because this situation is rapidly evolving, employers should consult their local public health authorities and the Centers for Disease Control and Prevention (CDC). For key facts on the H1N1 flu virus, see www.cdc.gov.
Accurate and timely public health information is critical to an effective and ADA-compliant pandemic plan. Employers should establish lines of communication with local public health authorities and community medical experts in advance of a pandemic. See www.pandemicflu.gov.
Title I of the Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination. 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.
Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment.
See Disability-Related Inquiries & Medical Examinations of Employees Under the ADA (2000) at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. See also Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations (1995) at http://www.eeoc.gov/policy/docs/preemp.html.
An employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries. An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity). Below is a sample ADA-compliant survey that could be given to all employees before a pandemic.
Directions: Answer “yes” to the whole question without specifying the reason or reasons that apply to you. Simply check “yes” or “no” at the bottom.
In the event of a pandemic, would you be unable to come to work because of any of the following reasons:
Answer: YES __________ NO __________
Yes, in limited circumstances. The ADA permits an employer to require entering employees to undergo a medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination.
Example A: An employer in the international shipping industry implements its pandemic influenza preparedness plan when the WHO and the CDC confirm that a new influenza virus, to which people are not immune, is infecting 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.
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA.
Yes. An employer may require employees to wear personal protective equipment. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these absent undue hardship.
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 also may be a reasonable accommodation.
Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws.
See generally EEOC Fact Sheet on Work at Home/Telework as a Reasonable Accommodation at http://www.eeoc.gov/facts/telework.html
Effective January 1, 2009, Congress amended the Americans with Disabilities Act pursuant to the Americans with Disabilities Act Amendments Act of 2008 (ADA AA or Amendments). The EEOC will be revising its ADA regulations to comply with these Amendments. With the ADA AA, Congress changed the way that the ADA’s statutory definition of the term “disability” should be interpreted. The Amendments emphasize that the definition of disability should be construed in favor of broad coverage of individuals, to the maximum extent permitted by the terms of the ADA, and generally shall not require extensive analysis. See http://www.eeoc.gov/ada/amendments_notice.html. For the full text of Titles I and V of the ADA, as amended, see Americans with Disabilities Act of 1990.
The ADA AA does not change the ADA’s restrictions on disability-related inquiries and medical examinations, discussed herein.
This page was last modified on May 4, 2009.