Among other things, the Americans with Disabilities Act (ADA) regulates when and how employers may require a medical examination or request disability-related information from applicants and employees. This requirement affects when and how employers may request health information from applicants and employees regarding the H1N1 flu virus.

Under the ADA, after employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. (Remember, you must keep confidential any medical information obtained from a disability-related inquiry or medical examination, as well as any medical information voluntarily disclosed by an employee.)

To help employers deal with the expected epidemic without running afoul of the ADA, the feds have compiled a Q&A.

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Planning for Absenteeism

We want to find out who might have to miss work in the event of a pandemic. How may we ask employees about factors, including chronic medical conditions, that may cause them to miss work?

EEOC: 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.

For example, an inquiry would not be prohibited if it identified nonmedical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) and medical reasons (e.g., chronic illnesses that weaken immunity) without distinguishing between the two.

For example, here is the EEOC's suggested ADA-compliant survey that could be given to all employees. It allows you to gather the information you need for planning without obtaining direct information about a disability.

ADA-Compliant Pre-Pandemic Employee Survey

Directions:  Answer “yes” or “no” 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:

• If schools or day-care centers were closed, you would need 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;
• If you or a member of your household fall into one of the categories identified by 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 (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer:  YES __________ NO __________

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Keeping Out Infected New Hires

We're trying to keep the flu out of our workplace. May we require new hires to have a medical test post-offer to determine their exposure to the influenza virus?

EEOC: 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.

In tomorrow's Advisor, we'll answer more ADA/H1N1 questions, and we'll take a look at a unique product just for small HR departments that have to deal with HR’s big challenges.

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