The Legal Aspects of Trying to Protect Your Workplace from the Swine Flu (H1N1) Virus and Other Illnesses
Many employers are concerned about protecting themselves, their employees, and their companies from the H1N1 virus. Protecting the workplace from an epidemic and preparing for workplace absenteeism has become high priority since the H1N1 swine flu epidemic has begun. Therefore, it seems like a good time to highlight the federal Americans with Disabilities Act’s (“ADA”) requirements for disability related inquiries and medical examinations.
The ADA applies to all employers with 20 or more employees. Many states have similar statutes. Title I of the ADA limits an employer’s ability to make disability-related inquiries or require medical examination at three stages: pre-offer, post-offer, and during employment. As a general rule, all disability related inquiries and medical examinations of employees must be “job-related and consistent with business necessity.”
At the pre-offer stage, no disability-related inquiries or medical examinations are allowed under the ADA, even if they are job related.
Once a conditional offer of employment is made, but before the employee starts work, disability-related inquiries and medical examinations may be conducted even if they are not related to the job, as long as they are done for all entering employees in the same job category. An employer can require all entering employees, who have received conditional offers of employment, to take a medical test to determine exposure to the influenza virus if the employer imposes this requirement on all post offer employees.
After employment begins, an employer may make disability-related inquiries and require job examinations only if they are job related and consistent with business necessity. An employer making such an inquiry should limit the inquiry to only the information necessary to determine whether the employee can perform the essential job functions without posing a direct threat.
An employer who reasonably believes that an employee poses a direct threat to the workplace can require that the employee be examined by an appropriate health care professional of the employer’s choice. The employer must bear the expense of this examination and the health care professional who performs the examination must have expertise in the employee’s specific condition. If the employee provides contradictory information from his/her own health care provider then the employer should proceed with caution in relying solely on its health care providers opinion. An individualized analysis should be undertaken.
When an employee is on sick leave for a medical condition, the employer is entitled to request that the employee provide a doctor’s note or other explanation to substantiate the reason for the use of sick leave, BUT the employer must have a policy or practice to require such substantiation from all employees. When an employee wishes to return from a sick leave, the employer can require an examination for fitness for duty if the employer has a reasonable belief that the employee’s ability to perform his/job is impaired or still poses a threat.
An employer can require employees to undertake infection control precautions during a pandemic such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal. Employers can require employees to wear personal protective equipment as well. Employers can also require (or encourage) employees to work from home as an infection control strategy but employers cannot single out employees to telework or to continue to report to work on any basis prohibited by the ADA or other equal employment opportunity laws.
Employers who wish to survey their workforce to gather personal information needed for pandemic preparation may do so provided certain legal requirements are met if the employer asks broad questions that are not limited to disability- related inquiries. The federal Equal Employment Opportunity Commission has issued a sample ADA-Compliant Pre-Pandemic Employee Survey which can be used.
The foregoing is a broad and general discussion of what can be a very complex subject. Legal counsel should be consulted before any action is taken with regard to these issues.
The ADA applies to all employers with 20 or more employees. Many states have similar statutes. Title I of the ADA limits an employer’s ability to make disability-related inquiries or require medical examination at three stages: pre-offer, post-offer, and during employment. As a general rule, all disability related inquiries and medical examinations of employees must be “job-related and consistent with business necessity.”
At the pre-offer stage, no disability-related inquiries or medical examinations are allowed under the ADA, even if they are job related.
Once a conditional offer of employment is made, but before the employee starts work, disability-related inquiries and medical examinations may be conducted even if they are not related to the job, as long as they are done for all entering employees in the same job category. An employer can require all entering employees, who have received conditional offers of employment, to take a medical test to determine exposure to the influenza virus if the employer imposes this requirement on all post offer employees.
After employment begins, an employer may make disability-related inquiries and require job examinations only if they are job related and consistent with business necessity. An employer making such an inquiry should limit the inquiry to only the information necessary to determine whether the employee can perform the essential job functions without posing a direct threat.
An employer who reasonably believes that an employee poses a direct threat to the workplace can require that the employee be examined by an appropriate health care professional of the employer’s choice. The employer must bear the expense of this examination and the health care professional who performs the examination must have expertise in the employee’s specific condition. If the employee provides contradictory information from his/her own health care provider then the employer should proceed with caution in relying solely on its health care providers opinion. An individualized analysis should be undertaken.
When an employee is on sick leave for a medical condition, the employer is entitled to request that the employee provide a doctor’s note or other explanation to substantiate the reason for the use of sick leave, BUT the employer must have a policy or practice to require such substantiation from all employees. When an employee wishes to return from a sick leave, the employer can require an examination for fitness for duty if the employer has a reasonable belief that the employee’s ability to perform his/job is impaired or still poses a threat.
An employer can require employees to undertake infection control precautions during a pandemic such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal. Employers can require employees to wear personal protective equipment as well. Employers can also require (or encourage) employees to work from home as an infection control strategy but employers cannot single out employees to telework or to continue to report to work on any basis prohibited by the ADA or other equal employment opportunity laws.
Employers who wish to survey their workforce to gather personal information needed for pandemic preparation may do so provided certain legal requirements are met if the employer asks broad questions that are not limited to disability- related inquiries. The federal Equal Employment Opportunity Commission has issued a sample ADA-Compliant Pre-Pandemic Employee Survey which can be used.
The foregoing is a broad and general discussion of what can be a very complex subject. Legal counsel should be consulted before any action is taken with regard to these issues.