• Guidance for Employers Preparing for a Possible Severe Flu Outbreak
  • October 20, 2009 | Authors: David M. Buday; Nathan D. Plantinga; Sarah K. Willey
  • Law Firms: Miller Johnson - Kalamazoo Office; Miller Johnson - Grand Rapids Office
  • The Equal Employment Opportunity Commission (EEOC) recently published new guidance entitled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."

    Generally, this guidance tracks the flu season preparation recommendations made by the Center for Disease Control (CDC) and confirms that the CDC's recommendations are consistent with the ADA. Importantly, the guidance states that:

    • ADA-covered employers may ask employees who report feeling ill at work or who call in sick if they are experiencing influenza-like symptoms such as fever or chills and a cough or sore throat. The EEOC states that such questions are not disability-related inquiries for pandemic flu breakouts "like" the seasonal flu or the spring/summer 2009 H1N1, and that if a pandemic flu outbreak became more severe, such inquiries would be justified based on the "direct threat" to health and safety that such an outbreak would create.
    • ADA-covered employers may send employees home if they display influenza-like symptoms during a pandemic. Accordingly to the EEOC, such a decision would not constitute a disability-related action if the pandemic remains at its current severity levels. Such action would also be justified "if the illness were serious enough to pose a direct threat."
    • ADA-covered employers may require employees who have been away from work during a pandemic to provide a doctor's note certifying fitness for duty. The EEOC notes, however, just as the CDC pointed out, that healthcare professionals may be too busy to provide fitness-for-duty documentation. Accordingly, the EEOC suggests that employers accept "new approaches" to medical certification, "such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus."

    The EEOC guidance eases some concerns that existed with respect to H1N1 preparations and the ADA. And, while the EEOC is not likely to pursue cases where employers acted consistent with its guidance, it is important to note that courts are not bound by the EEOC's position on this issue. This is especially true for "regarded as" claims under the recently amended ADAAA, which merely require a showing that an employer took action based on an actual or perceived "impairment" that is not "transitory" (i.e., less than six months) or "minor" (undefined, case-by-case basis). Among other things, the EEOC has failed to consider how its guidance will impact such claims.

    Given the complexity regarding these issues, employers should consult with legal counsel before implementing their pandemic illness policies.