Legally Navigating the H1N1 Pandemic
by Kraig Marton, Esq. & Jerrie Martinez-Palombo,
Flu season is upon us. Employees have begun to call in sick and
the CDC is warning employers to prepare to have approximately 40
percent of their workforce affected by H1N1. Government agencies
are dispersing new regulations daily and employers are left with
the difficult task of sifting through information as they scramble
to deal with this pandemic and simultaneously manage their
Employers need pragmatic guidelines for dealing with the H1N1
pandemic. Any informed employer should know about the Equal
Opportunity Commission's - "EEOC" - recent rulings on the Americans
with Disabilities Act (ADA) and how they apply to H1N1.
According to the EEOC, ADA pertains to the H1N1 pandemic in
three ways: 1) ADA regulates employer disability related inquiries
and medical examinations even for employees who do not have ADA
disabilities; 2) ADA prohibits employers from excluding individuals
covered under ADA from the workplace unless they pose a direct
threat; and 3) ADA provides for reasonable accommodations for those
with disabilities during a pandemic.
The ADA applies to all employers with 15 or more employees. It
requires that every such employer "provide qualified individuals
with disabilities an equal opportunity to benefit from the full
range of employment related opportunities available to others."
What health related questions can an ADA covered employer ask
The ADA limits an employer's ability to make "disability-related
inquiries" of its existing employees. The ADA also limits medical
examinations of employees to certain limited circumstances.
The EEOC better explains "disability-related inquiries" by using
the example of inquiring about a person's compromised immune
system, which can be associated with cancer or HIV. Asking about
medical conditions that may make an employee more susceptible to
H1N1 would be considered a disability-related question.
However, asking employees about common cold symptoms or flu
symptoms that do not pertain to a disability, such as "Do you have
a fever?" are considered acceptable. It is fine to ask an employee
if they are experiencing symptoms, such as fever or chills and a
cough or sore throat, but remember to keep such matters
confidential. Employers also have a right to know why an employee
was absent from work and can inquire as to reason the person was
When can an employer require an employee to see a medical
ADA also prohibits employers from requiring medical examinations
of existing employees "unless they are job related or a business
necessity." For an employer to require such an examination, the
employer "must have a reasonable belief based on objective evidence
obtained that an employee's ability to perform essential job
functions will be impaired by a medical condition or that an
employee will pose a direct threat due to a medical condition."
ADA defines direct threat as "a significant risk of substantial
harm to the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable accommodation." The
question becomes, is being diagnosed with H1N1 considered a direct
At present, the H1N1 is not considered a "direct threat."
According to the EEOC, H1N1 is declared a direct threat if the CDC
or local public health officials declare that it is. Such a
declaration would require them to provide information that the H1N1
has become more severe.
The EEOC states that public health recommendations on state and
local levels can change quickly and employers are strongly urged to
stay apprised of the most current H1N1 information issued by the
CDC and their local public health officials. In the event that H1N1
is declared a "direct threat" employers may ask disability related
questions or require medical examination of employees displaying
influenza symptoms in order to detect those that may be at higher
risk of influenza complications and better protect their work
Presently, employers can require that absent employees provide a
doctor's note that attest to their fitness for duty upon returning
to work. However, employers should be aware that mild cases of H1N1
do not require medical treatment. Requiring a doctor's note to
return to work may discourage some ill individuals from staying
home which would further spread the virus. Employers are also
cautioned that if they do enact a policy which requires a doctor's
note for unscheduled absences, that apply the policy consistently
with all employees - not just those with H1N1 - as this will reduce
the possibility of a discrimination claim.
The ADA is also very clear that any medical information about an
employee obtained via medical examination or disability related
inquiry be kept confidential and maintained in a medical file
separate from an employee's personnel file. Employers may, however,
inform managers or supervisors of the request if an accommodation
or work restriction is necessary.
Do I have to provide reasonable accommodations to those with a
disability during this H1N1 pandemic?
ADA requires employers to provide "reasonable accommodation" to
applicants and employees with a disability so that they may have an
equal opportunity to apply and/or perform a job. Only when an
accommodation poses an "undue hardship" and requires substantial
difficulty or cost for an employer are they not required to
Chances are some employers will have employees with
disabilities, especially those with a compromised immune system,
request an accommodation during this flu season. The EEOC confirms
that even during a pandemic, employers must continue to comply with
reasonable accommodations. Allowing a sort amount of time off to
recuperate is generally seen as a reasonable accommodation. It is
only lawful for an employer to exclude a disabled employee from
employment, if the employer can illustrate that the disabled person
poses a direct threat after reasonable accommodation has been
Can an Employee send its ill employees home?
An employer does not violate the ADA if it sends its ill
employees home. Advising such workers to go home is not a
disability-related action if the illness is reasonably appears to
be H1N1 or other communicable disease.
What can employers do to maintain a productive workforce during
During this pandemic there are many things employers can do to
reduce the spread of infection and maintain a productive workforce.
Employers can enact infection control measures such as good hygiene
and hand washing amongst its employees. When possible employers can
also request employees telecommute from home, which will also
eliminate the spread of infection.
Employers may send employees who report flu like symptoms or
have an elevated temperature or fever home, as this too will reduce
the spread of influenza. In conjunction with the CDC, employers may
also require sick employees to remain home until at least 24 hours
after their fever subsides.
Though employers cannot require all employees receive the H1N1
vaccination, they can encourage employees to obtain the H1N1
vaccination and even provide them with information as to where
vaccinations are being given.
During this pandemic it is a good idea for employers to be alert
to symptoms of H1N1 in the workplace. If an employee appears ill,
questions can be asked about the symptoms and the employee can be
sent home. An employer should also take reasonable efforts to
provide a workplace that limits the possibility of a spread of
However, this article is intended to provide general guidelines
and not specific advice about any particular circumstance. In the
event of questions or concerns you should contact counsel.
To learn more, you can see the EEOC's recently issued guidelines
on H1N1 here: www.eeoc.gov
The EEOC's general ADA enforcement guidelines on these topics
can be found here: www.eeoc.gov