The EEOC just released a technical assistance document for employers on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (ADA). The document explains, from the perspective of the ADA, how much information an employer may request from an employee who calls in sick in order to protect the rest of its workforce when an influenza pandemic appears imminent; when an employer may take the temperature of an employee under the ADA during a pandemic; whether the ADA allows employers to force sick employees to to stay home; and whether employers can require doctor’s notes before allowing employees to return to work.
The EEOC document does not address what is allowed under state law. In some cases, state law may be more protective of individual’s rights. The EEOC’s technical document also does not address whether the flu qualifies as a disability in the first place. Even under the recent amendments to the ADA, it probably does not qualify because of its short-term nature. It may qualify as a disability under state law, however, and many states look to the ADA for guidance.
The EEOC’s technical document points out that during employment, an employer can only make disability-related inquiries or obtain medical examinations if the employee’s ability to perform essential job functions will be impaired by a medical condition, or if the employee will pose a direct threat due to a medical condition. The EEOC states that the H1N1 flu does not qualify as a “direct threat” under the ADA or justify disability-related questions or medical examinations in its current form. However, if the flu’s symptoms become more severe and state or local authorities or the Center for Disease Control later decide it is a direct threat, employers could make such inquiries.
Employers can ask employees why they have been absent from work and also ask when the employee will return to work. According to the EEOC, employers can also ask employees during a pandemic if they are experiencing influenza-like symptoms such as a fever or chills and a cough or sore throat. This information must be maintained as confidential.
Employers can also send employees home if they display influenza-like symptoms. An employer can require a doctor’s note certifying fitness to return to work, but the EEOC notes that, during a pandemic, doctors and other health care professionals may be too busy to provide notes.
Employers cannot take employees’ temperatures to determine whether they have a fever because taking someone’s temperature is considered a medical examination. However, if the H1N1 flu becomes severe enough that it is determined to be a “direct threat” under the ADA, this answer could change. The EEOC also notes that some people with the flu do not run a fever.
The EEOC’s technical guidance has more questions and answers that employers may find helpful, and employers can also look to our September 18, 2009 posting on H1N1 Flu in the Workplace for additional resources.
