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Attorneys: Get Ready for Next Flu Outbreak

By Beth Mirza  5/14/2009
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The uproar over swine flu is dying down, but the virus could make its way back into the news—and homes, schools and businesses—during the winter flu season. Now is the time to update policies and procedures on contagious diseases, employment attorneys say, and some guidance from the federal government is a good place to start.

The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance on workplace preparation strategies for swine flu that comply with the Americans with Disabilities Act (ADA). Having swine flu might or might not be considered a disability under the ADA; however, “the ADA does regulate when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability,” the guidance states. “This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 (swine) flu virus.”

Under the ADA, employers can make inquiries and conduct medical examinations after an applicant is given a conditional job offer but before he or she starts work. These exams do not have to be related to the job, and the employer must administer the exams to all entering employees in the same job category. For employees already on the job, employers may make inquiries or require exams only if they are job-related.

The guidance notes that the Americans with Disabilities Amendments Act (ADAAA), which went into effect Jan. 1, 2009, emphasizes “that the definition of disability should be construed in favor of broad coverage of individuals, to the maximum extent permitted by the terms of the ADA, and generally shall not require extensive analysis.” It adds that the ADAAA does not change the ADA’s restrictions on medical examinations.

Review your policies and procedures now before swine flu rears its ugly head again, attorneys say.

“Those employers that have studied the facts about the illness and have policies in place to deal with an epidemic or pandemic have a leg up,” said Peter Petesch, an attorney in the Washington, D.C., office of Littler Mendelson PC.

When considering procedures to test employees for the virus, ask an employee to be tested only if the employee is showing symptoms, Petesch said.

“Be familiar with the symptoms of H1N1 and have enough information to confirm that an employee is demonstrating symptoms,” Petesch said.

Don’t consider testing employees if they have visited an area where an outbreak has occurred but they are not showing symptoms, said Christine Kenny, an associate in Saul Ewings’ Philadelphia office.

“Just the mere fact that [an employee] took a vacation to Mexico, it’s not a prudent decision to test,” Kenny said, saying that such a step could be seen as discriminatory.

If you do test employees, be careful what you do with that information. Policies should note that all medical information obtained from the exams, disclosed voluntarily or learned from voluntary health and wellness programs must be treated as a confidential medical record, according to the EEOC guidance.

Policies can note that, based on information from the Centers for Disease Control and Prevention or local health authorities, the employer can encourage or request employees to telework as a method of infection control, Kenny said.

Take the time to revisit leave policies, paid-time-off policies and collective bargaining agreements, Kenny added. This is a good opportunity to address emergency response and safety policies and practices. Communication of these procedures will be important.

“One thing that employers should spend time on is coming up with comprehensive policies, including surveys and communications pieces, that don’t foment panic,” Kenny said. Be careful of adding to employees’ fear of reprisal if they call in sick, she said, especially employees who travel to Mexico or have family there or in other parts of the world where swine flu has been discovered.

“Take this summer and make sure you have all your ducks in a row in case something resurfaces in the fall, as some experts are predicting,” Kenny said.

Beth Mirza is senior editor for HR News. She can be reached at

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