Ebola has been in the news and at the forefront of many people’s concerns. While it has not reached the stage of a pandemic outbreak in the U.S., we turn to the Equal Employment Opportunity Commission (EEOC) for guidance on pandemic influenza. Of course, even if Ebola does not become a significant health risk in the U.S., flu season is here!
The EEOC takes the position that certain inquiries and actions may violate the Americans with Disabilities Act absent substantial evidence of health-related risk. The ADA, which is a federal statute protecting employees and applicants from discrimination on the basis of disability, regulates the inquiries and medical examinations that employers may undertake. The ADA also prevents employers from excluding individuals with a disability from the workplace unless they pose “a direct threat” to themselves or others. Finally, the ADA requires reasonable accommodation for individuals with disabilities unless undue hardship would arise as a result.
So what does all this mean? Here are some definitions.
A disability-related inquiry is an inquiry likely to elicit information about a disability. While asking an employee about a weak or compromised immune system is probably a disability-related inquiry, asking a worker about the symptoms of a cold or the seasonal flu is not likely to elicit information about a disability.
A medical examination is a procedure or test that elicits information about a physical or mental impairment. Although asking someone if they have a fever is probably not a disability-related inquiry, taking that person’s temperature with a thermometer would be a medical examination.
Under the ADA, the rules are fairly straightforward. An employer cannot make a disability-related inquiry or perform a medical examination on an applicant for employment. After a conditional offer of employment, however, the law does allow an employer to make disability-related inquiries and conduct medical examinations provided that everyone in that job category is subject to the same inquiries and tests. Once employed, a worker cannot be the subject of an inquiry or test unless the employer has a reasonable belief that either the worker’s ability to perform an essential job function will be impaired, or the worker will pose a direct threat due to a medical condition.
For our purpose, the question is whether a worker who contracts Ebola or the flu poses a direct threat to others. Because the direct threat analysis must be based on objective, factual information, concrete contractors are well advised to pay attention to the CDC’s characterization of the Ebola or influenza outbreak, as well as their local or state health officials assessment of the severity of the risk. EEOC regulations set out four factors that should be considered as part of the direct threat analysis:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood the potential harm will occur.
- The imminence of the potential harm.
With regard to Ebola, the answers to these questions are fairly clear; the answers are far less clear in the case of influenza.
Can you send workers home if they are demonstrating symptoms suggesting that have contracted Ebola or have the flu? The CDC takes the position that such worker should go home. In addition, an employer can rely upon the direct threat analysis also.
How much information can you obtain from the worker? It is generally lawful for an employer to ask workers if they are experiencing relevant symptoms. You should be certain to keep this information confidential as it is a medical record under the ADA. Depending upon the CDC (or state/local health authorities) assessment of the severity of the outbreak, you may rely upon the direct threat analysis.
Can you take a worker’s temperature? This is almost certainly a medical examination. Again, depending upon the severity of the outbreak, you may be authorized to do so.
Can you ask if the worker has recently traveled to a high-risk area? In general, asking where a worker has traveled is not a disability-related inquiry, so there is no ADA implication to making this inquiry. What you do with the information will depend upon the local/state/federal assessment of the risk.
Note that other laws may impact your analysis. For example, although common influenza is probably not a “serious health condition” under the Family and Medical Leave Act, Ebola probably is. Similarly, different outbreaks may affect workers compensation coverage short-term disability benefits, and other leave-related policies and procedures. Contractors should check with legal counsel to determine the significance of these other laws.