The H1N1 virus (aka "swine flu") continues to spread.  Is your workplace prepared?  Are your policies and procedures legally compliant?  In order to help employers, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."  (Click title to download). The EEOC guidance answers several common questions relating to H1N1 and compliance with the ADA.  For example:

  • May an employer send employees home if they display influenza-like symptoms during a pandemic?  Yes.  Employees who become ill with flu-like symptoms at work should leave the workplace.  Directing such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus.
  • How much information may an employer request from employees who report feeling ill at work or who call in sick?  Employers may ask employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • May an employer require employees to wear face masks or gloves, or gowns to reduce the transmission of the H1N1 or flu virus?  Yes. An employer may require employees to wear personal protective equipment during a pandemic. 
  • May an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?  Yes. Requiring regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA. 

The guidance addresses these and many other common H1N1 questions.  In short, the EEOC is directing employers not to panic, to take the H1N1 outbreak seriously, but also to treat it no differently than the regular seasonal flu — at least from an employment law perspective.  For more information, consult the EEOC guidance or contact your employment law attorney.