HR Management & Compliance

EEOC Issues H1NI Flu Virus Guidance for Employers

The federal Equal Employment Opportunity Commission (EEOC) has issued two guidance memos for employers related to the current H1N1 flu outbreak—formerly known as “swine flu.”

The first memo simply reminds employers that they cannot discriminate against employees on the basis of national origin. This is true under both federal and California law. News reports have indicated that the H1N1 virus may have traveled to the United States from Mexico. Employers should be careful that employees of Mexican descent, especially new hires and applicants, are not shunned or turned away out of fear that they may be carrying the virus.


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The second memo addresses several factors employers need to be mindful of regarding when you can ask employees about health conditions. Under both state and federal law, employers can ask questions about an employee’s health status or disability under the following conditions:

  • Pre-Employment: During the pre-employment application and interview process, employers are not permitted to ask any questions about an employee’s health status or disability;
  • Post-Offer: Once an offer of employment has been made, but before the employee starts work, employers are allowed to ask for disability-related information and require medical examinations, so long as all incoming employees in the same job category are required to answer the same questions or undergo the same examinations;
  • Employment: once an employee has begun work, employers are permitted to make inquiries into an employee’s health status or disability only if doing so is a business necessity (for example, if the inquiry is necessary in order for employers to determine what duties can be assigned to the employee), or in response to an employee’s request for accommodation or medical leave. In the case of medical leave, California employers can ask for certification that the leave is necessary but cannot ask for a physician’s diagnosis.

In certain cases, a person with the H1N1 virus may qualify as disabled under both state and federal law, and employers should apply their normal disability policies and procedures when an employee asks for accommodation.


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Employers who wish to engage in formal pandemic preparedness can ask employees to answer the following survey in order to plan ahead for pandemic related absenteeism:

ADA/FEHA-Compliant Pre-Pandemic Employee Survey

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:

  1. If schools or day-care centers were closed, you would need to care for a child;
  2. If other services were unavailable, you would need to care for other dependents;
  3. If public transport were sporadic or unavailable, you would be unable to travel to work, and/or;
  4. 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 __________

You can access the EEOC’s guidance memos on the agency website.


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