EEOC Issues Guidance for Employers for Workplace Planning During Pandemic
In the midst of the H1N1 pandemic, the EEOC has issued an awareness document for employers, to educate them on their rights and requirements. In “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” (http://www.eeoc.gov/facts/pandemic_flu.html), the EEOC states that:
- An employer can ask an employee if he/she would be unavailable for work under non-disability-related conditions, such as care for a child in the event of a school closing or care for other dependents. The question must be stated in a way that will allow the employee to answer “yes” or “no” without specifying anything further.
- An employer can send an employee home if the employee shows flu-like symptoms. Such an action is not ADA-related. The action would also be permitted under the ADA if the employee’s illness posed a direct threat. The employer can ask the employee if he/she has symptoms, but must retain all information concerning the illness in strict confidentiality in compliance with the ADA.
- Employers can ask employees to telecommute instead of coming to the workplace during a pandemic.
- An employer may NOT mandate a flu vaccination regardless of religious beliefs or medical conditions. Employers are better served to simply encouraging their employees to get the vaccine.
- Employers may require post-offer medical examinations to determine overall health, as long as the standard is applied consistently to all new hires.