We have provided links before to  EEOC’s Guidance to employers concerning compliance with the ADA during a pandemic.  Now that we seem to officially be in the midst of one, it is a good time to revisit what is permissible for an employer to do help contain the spread of H1N1.

Section III (B) of the EEOC document contains guidance on what employers can do during a pandemic.   Some of the very practical questions addressed include the following:

1.  May an employer send an employee home who displays influenza like symptoms?  Answer: yes; if there is a pandemic asking such workers to go home is not a disability related action.  Even if there was no pandemic, if the influenza resulted in a direct threat to the health or safety of the employee or others, the employee may be sent home.

2.  How much information can an employer request from employees who report feeling ill or call in sick?  Answer: employers may ask if the employee is feeling influenza like symptoms, such as chills or a fever and a cough or sore throat.   Any information obtained through such an inquiry must be treated as a confidential medical record. 

3.  May an employer require employees to wear personal protective equipment (e.g. face mask, gloves, or gowns)?  Answer: yes, however, it must be noted that if a person needs a reasonable accommodation to wear such equipment (e.g. non-latex gloves), the employer should provide these, absent undue hardship.   

4.  May an employer compel its employees to obtain influenza vaccine?  Answer: employees may be entitled to exemptions from mandatory vaccination because of a disability, or because of a sincerely held religious belief.   Whether or not the employee is exempt would depend upon if not taking the vaccine would be a reasonable accommodation of the disability or religious belief.

It is important to note that it is the pandemic condition that gives employers the right to make certain inquiries.  If there is not a pandemic situation, or if you are unsure, you should seek advice from your employment counsel before taking any action relating to H1N1.