Lisa Schnirring Staff Writer
Oct 7, 2009 (CIDRAP News) – Businesses that take steps to protect workers during a pandemic have worried about staying in compliance with the Americans with Disabilities Act (ADA), and federal officials have responded by issuing new guidance that addresses many of the issues.
One of the top business worries is protecting workers who have underlying health conditions, but according to the new 14-page guidance document from the US Equal Employment Opportunity Commission (EEOC), issued on Oct 5, employers are barred from asking about chronic conditions unless the pandemic becomes severe.
The guidance helps steer employers away from asking "disability related" questions, such as asking an employee if he or she has immune system compromise, which might suggest cancer or HIV.
It also clarifies if pandemic flu is a "direct threat" according to ADA rules. A direct threat might trigger disability medical questions or medical examinations.
The EEOC guidance says the flu isn’t considered a direct threat if health authorities say the illness is like seasonal influenza or patterns that were seen in the spring and summer wave. However, the pandemic would be considered a direct threat if public officials determine it has become more severe.
Taking cues from public health
Carol Miaskoff, assistant legal counsel with the EEOC, told CIDRAP News that employers have been asking a lot of questions about complying with ADA rules in a pandemic setting. She said one of the most common ones is if it’s within the law to send a sick employee home. The answer is yes, the guidance says.
The guidance coaches employers to take their cues from the advice of public health authorities. "If they do that, they’ll be OK with the ADA, and it also gets away from convoluted legal explanations," Miaskoff said.
Though many employers want to take all the steps they can to protect employees, the EEOC hopes the guidance will post some red flags to help them avoid violating ADA rules, she said. For example, during pandemic planning, businesses can’t generally ask about underlying conditions unless public health officials have said the outbreak is locally or globally severe, she said.
The EEOC guidance, however, offers an example of an ADA-compliant survey that employers can use to anticipate absences during a pandemic. It asks employees to indicate a single yes or no at the end of a list of situations that might bar them from coming to work in a pandemic, such as the need to care for a child if schools close, a need to care for other dependents, lack of public transportation, and the employee’s or a household member’s high risk, as defined by the Centers for Disease Control and Prevention (CDC), for medical complications from the virus.
The guidance also walks employers through what they can ask about when employees call in sick. It states that employers can take worker temperatures only when pandemic flu becomes more severe or if the CDC or local authorities say the virus is widespread in the community.
It also says that in a pandemic employers can encourage employees to telecommute, require them to adopt infection control practices, and wear personal protective equipment.
Also, the guidance notes that employers can’t mandate flu vaccination regardless of medical conditions or religious beliefs. "Generally, ADA-covered employees should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it," the document notes.
Though the CDC has advised businesses to relax their requirement for sick employees to provide a doctor’s note when they return to work, the EEOC guidance says asking for a note doesn’t typically violate ADA standards. However, the authors note that doctors’ offices may be too busy and that new approaches may be needed—such as forms, stamps, or e-mails from clinics—for businesses that still require notes.
Hurdles to pandemic planning?
Penny Turnbull, PhD, senior director for crisis management and business continuity planning for Marriott International, Inc., told CIDRAP News that the guidance and the ADA rules prevent businesses from taking some key pandemic planning steps. "In order to make the necessary plans ahead of the more severe outbreak, we need to identify the employees now," she said.
The CDC’s guidance for businesses says that in more severe flu epidemics, businesses should try to change work duties, workspace, or work schedules for employees who are at higher risk for flu complications, such as pregnant women and those with chronic medical conditions, to reduce their risk of contracting the virus at work.
"How can we protect them if we can’t ask who they are?" she asked, adding that waiting until officials declare a severe pandemic may be too late to protect many workers. "What I’m really concerned about is, does this give us the freedom we need to make the plans now?"
One option might be to ask people who may be at risk for complications to voluntarily identify themselves, Turnbull said.
Navigating the nuances
Erin Whaley, an associate at Troutman Sanders, an international corporate law firm with headquarters in Atlanta, told CIDRAP News that the new guidance builds on previous EEOC pandemic guidance issued in May. She said the main change is that the agency has made the information more accessible, with "yes" and "no" answers to common employer questions.
"The law is never simple and never as black and white as you’d like it to be—there are some nuances," she said.
One of the gray areas is whether the pandemic H1N1 virus rises to the level of a "direct threat" as defined in the ADA. For some people, the virus will be more severe, she said. "For them, it may rise to a level of a disability." Employers should be cautious and work with their counsels on these issues, Whaley added.
The EEOC reiterated its previous guidance on prepandemic surveys designed to gauge potential worker absences, she said. Some employers are conducting more specific surveys, and they need to be sure, going forward, that they comply with the ADA model, which probably doesn’t provide as much useful information for planning.
The EEOC’s revised guidance seems to have incorporated more CDC guidance on vaccines, she said. It also affirms that employers have a duty to track the development of the disease through health departments. Though some might not have the infrastructure to do that, "it clearly says employers must make the best efforts to get public health advice," she added.
Whaley said in the section on doctor’s notes, employers should be careful if they change their policies. Sometimes changes made for EEOC purposes can put businesses out of compliance with the Family and Medical Leave Act.
The EEOC also issued a short notice yesterday about employment discrimination during the H1N1 epidemic. In the spring some employers were telling workers who had traveled to Mexico to stay home, and a few fired workers who had family members from Mexico, Miaskoff said.
Now that the pandemic is global, she said this type of discrimination isn’t as much of a problem, but the notice is a warning for employers not to take such actions.