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H1N1 virus alert: Complying with the ADA during an emergency

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in Employment Law,FMLA Guidelines,Human Resources

The ADA prohibits discriminating against qualified individuals with a disability, as long as they can perform the job’s essential functions with or without accommodation.

The ADA also prohibits employers from performing medical tests or asking questions that are likely to make an employee reveal a disability. Even so, employers must know about their workers’ disabilities in order to provide a safe workplace.

The H1N1 influenza virus added a note of urgency to the need to understand the ADA’s privacy requirements.

Although some of the rules are relaxed in emergencies, employers that use confidential medical information to discriminate against workers will have to answer in court for their actions.

 WHAT’S NEW: The World Health Organization (WHO) has declared a pandemic for the H1N1 flu virus. The EEOC recently issued guidance to employers on how to gather information necessary to cope with pandemic flu conditions without violating the ADA.

HOW TO COMPLY: For employers, gathering information is vital to preparing for a health emergency.

First, employers must assess risk. Employers need to know where their employees are traveling and whether those areas are affected by the pandemic. This information is available at the CDC web sites www.cdc.gov and www.pandemicflu.gov.

Currently, no clear profile of persons at risk from this flu strain exists. So employers are on thin ice predicting who may or may not be at risk from a demographic standpoint. Still, there are steps employers may take.

Exams and confidentiality

The ADA limits employers’ rights to request medical exams. The restrictions are different at various stages of employment, defined as the pre-offer, post-offer and employment stages.

• Pre-offer: Before the employer has offered the applicant a job, employers may not make any requests likely to reveal any disability. Further, employers may not require any medical examinations at this point.

• Post-offer: Following a conditional offer of employment, the employer may make disability inquiries or require medical examinations—as long as it does so for every employee in the same job category.

Employers may not revoke a job offer simply because the applicant reveals a disability. The employer and employee must work together to find a reasonable accommodation if one is needed. Employers may refuse an accommodation only if it would be an undue hardship on the business, given its size and available resources.

• Employment: Once an employee is hired, the employer may require examinations and make disability inquiries only if they are job-related and of business necessity.

Any information gathered from these inquiries and examinations is confidential. Only when absolutely necessary, employers may share this information with supervisors, safety personnel and government officials investigating ADA compliance.

Surveying the workforce

For purposes of emergency planning, employers may ask broad questions that are not limited to disability-related inquiries.

A request for nonmedical reasons that an employee might be absent during a pandemic would not violate the ADA. For example gathering information about what an employee would have to do during mandatory closings of a child’s school or shutdown of public transportation gives the employer key planning information without revealing any medical information.

A survey that asks a variety of questions dealing with conditions that might cause employee absenteeism is acceptable as long as the employee may answer yes, indicating that at least one of the conditions in question would apply during a pandemic. (See the box below for an example of a survey question that passes EEOC muster.)

Workplace pandemic response

Employers may take common-sense infection control measures without violating the ADA.

For example, employers may require employees to wash their hands regularly, cover coughs and sneezes, properly dispose of tissues and wear masks and other protective equipment.

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