Maybe we are all fatigued. Not from the swine flu, I hope, but from the endless overplayed news stories. It’s only September, though, and smart people are genuinely worried that this illness could infect a large swath of the population. (I’m somewhat comforted by one story that theorized that people who lived in the 1950s were probably exposed then to this very strain, and will be fine. Good, my kids will need me when they’re sick.) Other than taking precautions like stocking antibacterial supplies, what can employers do? The EEOC has just published a helpful list of ADA-Compliant suggestions, together with problem areas to avoid.
- Telecommuting. Some employers may want to expand or revisit the telecommuting option. Allowing more people to telecommute can slow the spread of the virus, as well as permit workers who need to stay near sick relatives to get some work done. Employers need to guard against imposing or denying telecommuting in a discriminatory way however. In addition, telecommuting may qualify as a reasonable accommodation under the Americans with Disabilities Act.
- Sanitary practices. Employers may also impose requirements, such as handwashing, use of masks, use of special tissue disposal containers, to impede the spread of contagious diseases. If any requirement would implicate a disability, however, the employer needs to take reasonable steps to accommodate the employee.
- Medical Tests and Questions. This area is frequently a touchy one for employers. They know generally that there are rules against asking about disabilities, rather than an employee’s ability to perform the essential functions of the job. But does that include the flu? Even in a pandemic? The EEOC guidance is interesting here, reminding employers that they can ask how an employee would be affected if schools were closed (contrasted with asking if they or family members are sick). And an employer may test a new hire, after the offer is made, if all new hires in the same situation are tested.
- Disabled Employees Vulnerable to Swine Flu. The swine flu is a temporary condition, and therefore not the sort of ailment that the ADA is designed to protect. It must be remembered, though, that certain chronic conditions may exacerbate the danger posed by swine flu, such as respiratory conditions, asthma and the like. The employer needs to be sensitive to a disabled employee needing an accommodation because his (or a family member’s) disabling condition makes the swine flu more serious.
- Family and Medical Leave Rights. The Fourth Circuit has already held that the flu is a serious illness subject to FMLA protections. For an employee with more than a year’s service with an employer of 50 or more employees, taking time to care for oneself or a family member with swine flue is protected activity under the FMLA, if all other requirements are met.