Swine Flu Virus and the ADA: EEOC Guidance for Institutions

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Can a college or university (or other employers) ask certain questions of prospective or current  employees to help in its efforts to address a future pandemic, such as the H1N1 virus (Swine Flu)? What kinds of workplace policies would be appropriate under federal law?

The Equal Employment Opportunity Commission (EEOC) has issued some helpful guidance on how to address workplace issues regarding a pandemic without violating the Americans with Disabilities Act (ADA).

The first issue it addresses is worth listing here (from the guidance):

“1. In light of the ADA’s requirements, how may employers ask employees about factors, including chronic medical conditions, that may cause them to miss work in the event of a pandemic?

An employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries.  An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity).”

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The guidance then goes on to provide an example of an ADA-compliant survey.

There are several other key issues that the guidance addresses including whether an employer can require its employees to adopt infection control practices.