Influenza Pandemic Preparedness In The Workplace

Background

In 2009, the H1N1 virus ("Swine Flue") rose to the level of a pandemic. [1] People across the nation and, indeed throughout the world are being afflicted. Employees are missing work, and schools are being shut down. As such, it is important for businesses and employers to know how to protect themselves and employees from this current problem.

The Equal Employment Opportunity Commission (EEOC) recently released guidance on how to comply with the American with Disabilities Act (ADA) while maintaining a safe and productive work environment during this flu season.

The ADA is applicable to pandemic preparation in three ways: 1) the ADA regulates employer disability related inquiries even for employees who do not have ADA disabilities; 2) the ADA prohibits employers from excluding individuals covered under the ADA from the workplace unless they pose a direct threat; and 3) the ADA provides for reasonable accommodations for those with disabilities during a pandemic. [2]

The goals of most employers is to reduce transmission among staff, protect those at increased risk from getting infected, maintain business operations, and minimize the adverse effects on other entities in their supply chain. [3] Therefore, it is important for employers to understand the ADA and how to incorporate proper precautions, while still maintaining a healthy, productive staff.

Planning Ahead

One of the best ways for employers to prepare for any pandemic to is plan ahead. Employers must be prepared to respond flexibly because the severity of this flu season cannot be predicted. [4]

Implementing an influenza pandemic plan is pertinent to a productive flu season. Preparing ahead of time to ensure compliance is key. First, a pandemic coordinator or team should be established with defined roles and responsibilities. [5] Once a pandemic team has been established a pandemic plan should be drafted or updated if one already exists. A plan should:

identify work related exposures and health risks;
review HR policies to ensure compliance with public health recommendations and state and federal laws;
explore policies such as flexible worksites and flexible hours;
identify essential work functions, jobs, etc. required to maintain business operations;
establish authorities, triggers, and procedures for activating and terminating the plan; and
establish processes to communicate information taking into consideration employees' fears and concerns. [6]

Also, it is helpful for employers to have knowledge of normal seasonal absenteeism rates and monitor for unusual increases. [7] Employers should routinely and regularly clean all commonly touched surfaces. [8] Moreover, in anticipation and preparation, employers should have a plan in place for social distancing in case implemented by public health officials. [9] Employers should also work with state and local health partners to ensure they are current on influenza pandemic information.[10]

What is important when preparing for a pandemic is to be flexible and have contingency plans, as circumstances vary. The extent and impact of the H1N1 virus this winter is unpredictable but proper preparation can give piece of mind to employers and employees.

What information can an employer request from an employee?

As employers prepare for the flu season they implement plans to ensure that they continue to provide a service to their clients. Nonetheless, employers must be cautious not to violate federal and state laws well doing so.

Under the ADA, an employer may not ask employees to disclose certain personal health information including compromised immune systems or chronic health conditions or inquire as to anything likely to elicit disclosure of the existence of a disability. [11] Yet, employers may ask employees to designate or identify non-medical reasons along with medical reasons for which they may be unable to work as a result of an influenza pandemic. [12] An example of a proper questionnaire in compliance with the ADA is:

ADA Complaint Pre-Pandemic Employee Survey

Directions: Answer "yes" to the whole question without specifying the factor that applies to you. Simply check "yes" or "no" at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

If schools or day-care centers were closed, you would need to care for a child;
If other services were unavailable, you would need to care for other dependents;
If public transport were sporadic or unavailable, you would be unable to travel to work; and/or
If you or a member of you household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influence virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES _______, NO _______ [13]

The ADA also prohibits an employer from making disability-related inquires and requiring medical examinations of employees except under limited circumstances. [14] An employer is prohibited from requiring medical examinations before an offer of employment. [15] After an offer but before beginning work an employer is permitted if all entering employees in the same job category are subject to the same inquires and examinations. [16] Also, an employer may only require an examination when it is job related and consistent with job necessity. [17] There are two instances where this is applicable: 1) employees ability to perform job functions is impaired, or 2) there is a direct threat due to medical condition. [18] A direct threat is "a significant risk or substantial harm to the health or safety of the individuals or others that cannot be eliminated or reduced by reasonable accommodation. [19] The Center for Disease Control (CDC) states that a direct threat depends on the severity of the illness. [20] Assessment by the CDC or public health authorities provide the objective evidence needed for a disability related inquiry or medical examination. [21]

Employers should tread lightly when inquiring about any health issues of employees. The Survey outlined above is a good example of how employees can assess their needs under threat of a pandemic without overstepping any federal or state laws.

During Pandemic

Once an employer's business has been affected by the pandemic an employer does have certain rights. An employer may send sick employees home because this is not a disability related action if the illness is akin to the flu or H1N1 virus. [22] Employers may require sick employees to remain home until at least 24 hours after their fever subsides. [23] Employers may also inquire as to whether employees are feeling ill or have been experiencing flu like symptoms. [24] They may also inquire as to why an employee did not report to work. [25]

Also, as an infection control strategy, employers may encourage telework, adopt infection control policies, and in extreme circumstances require employees to wear personal protective equipment. [26] An employer may not compel employees to take the influenza vaccine. [27]

Once an employee affected with the H1N1 wishes to return to work the employer may require a doctor's note. [28] However, as a practical note, depending on the outbreak and severity of the pandemic doctors and hospitals may be inundated with sick patients and unavailable to supply employer required documentation. [29] Therefore, it may be a better practice not to require a doctor's note before returning to work.

Conclusion

With the threat of an influenza pandemic employers must be prepared. Proper precautions will ensure that employers are in compliance with federal and state law while maintaining a healthy and productive work environment.