Delaware Employment Law Blog

Swine Flu is a concern for many employers right now. Employers want to provide employees with up-to-date information about the steps that can be taken to prevent the spread of the swine flu.  Employers also want to prevent the spread of panic where not warranted.  We posted previously with resources for employers. There is a new resource from the EEOC and it takes a different and important approach.  The EEOC's new guidance addresses how employers should manage ADA concerns as they may arise in the context of the swine flu.

The fact sheet, ADA-Compliant Employer Preparedness For the H1N1 Flu Virus, raises some excellent points.  My favorite is an issue has already come up with several of my clients--what to do if you are concerned about an employee's exposure to the swine flu.  For example, an employee returns from a business trip to Mexico, where he's been for several weeks.  Can you require that he not return to work until he gets tested for the H1N1 flu virus?  Can you require him to work at home or telecommute until the issue can be resolved?  Here's what the EEOC has to say:

May an employer require entering employees to have a medical test post-offer to determine their exposure to the influenza virus?

Yes, in limited circumstances. The ADA permits an employer to require entering employees to undergo a medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination.

Example A:  An employer in the international shipping industry implements its pandemic influenza preparedness plan when the WHO and the CDC confirm that a new influenza virus, to which people are not immune, is infecting large numbers of people in multiple countries. Because the employer gives these medical tests post-offer to all entering employees in the same job categories, the examinations are ADA-compliant.

For additional resources, see: Information for Employers on the Swine Flu