EEOC Issues Guidance on Pandemic Planning In the Workplace

According to the Centers for Disease Control and Prevention, report “H1N1 Flu and You, Questions and Answers,” each year an average of 36,000 people die and over 200,000 people are hospitalized in the United States because of flu-related complications. This year, that number is expected to rise dramatically as the season of the new strain of influenza, H1N1 or the “swine flu,” is in full swing.

Recently, the Equal Employment Opportunity Commission (EEOC) published guidance for employers on how to handle pandemic influenza without implicating the Americans with Disabilities Act (ADA).

The EEOC’s technical guidance, “Pandemic Preparedness in the Workplace and the ADA” (www.eeoc.gov/facts/pandemic_flu.html) addresses frequently asked questions about pandemic planning in the workplace.

In the guidance, EEOC answers questions about employer practices before, during, and after a pandemic, discussing how employers can prepare and respond without violating the ADA.

The EEOC’s guidance addresses questions such as:

• How much information may an employer request from an employee who calls in sick in order to protect the rest of its workforce when an influenza pandemic appears imminent?
• When may an ADA-covered employer take the body temperature of employees during a pandemic?
• Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
• When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

The EEOC guidance explains how EEOC evaluates employer practices and whether those practices are discriminatory or justifiable under the circumstances of a pandemic outbreak.

In its guidance, EEOC recognizes that the pandemic may become so severe that employers’ interest in protecting themselves and their businesses from the spread of disease may outweigh employees’ rights under the ADA and other antidiscrimination laws. If the pandemic is determined to be so severe that this occurs, the EEOC guidance will be modified accordingly.

To assist employers in assessing risk and planning for a pandemic, the EEOC’s guidance provides an “ADA-Compliant Pandemic Employee Survey,” which permits employers to plan for absenteeism by asking the following questions:

ADA-Compliant Pandemic
Employee Survey

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.
In the event of a pandemic, would you be unable to come to work because of any one 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 transport 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 the 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_

Requiring Vaccines for All?

The EEOC guidance specifically states that employers may not make a blanket requirement that all employees get vaccinated. While an employer may generally be able to impose mandatory vaccination requirements, it must provide exemptions for certain employees.

For example, under the ADA, an employee who has a disability preventing him or her from getting a flu vaccine, such as a severe allergy to eggs or an underlying medical condition that might be compromised by the flu vaccine, may be entitled to an exemption from a vaccination requirement, which would be considered a reasonable accommodation, barring any undue hardship to the employer.

Note that similar measures requiring vaccinations by all medical workers in New York State failed when challenged.

It is important to note that the EEOC’s guidance does not legally bind employers, but it is intended to help employers understand how EEOC will interpret the provisions of the ADA when conducting its investigations into claims of discrimination.