Pandemic Preparedness Considering the Needs of Employees with Disabilities During a Pandemic Flu Outbreak Job Accommodation Network 2009/2010 Webcast Series December 7,

Pandemic Preparedness Guest Speakers: Carol R. Miaskoff Assistant Legal Counsel, Coordination Office of Legal Counsel U.S. Equal Employment Opportunity Commission Brian S. Parsons, MPA, MUEP Senior Policy Advisor U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties 2

Pandemic Preparedness Session Overview Pandemic flu status Policies and practices for planning Information and resources on what employers can ask employees Questions and answers 3

Pandemic Preparedness Existing guidance for small businesses recommends a review of current pandemic flu plans or the development of a new plan. What's the best way to assure that the concerns of employees with disabilities are addressed in the plan? 4

Pandemic Preparedness Resources CDC Guidance for Businesses and Employers To Plan and Respond to the 2009–2010 Influenza Season Preparing for the Flu: A Communication Toolkit for Businesses and Employers Preparing the Workplace for Everyone: Accounting for the Needs of People with Disabilities 5

Pandemic Preparedness How can employers make sure that H1N1 related information they are providing to employees with disabilities is accurate and timely? How can employers empower their employees with disabilities to engage in effective preparedness and prevention activities regarding H1N1? 6

Pandemic Preparedness Acting on concerns for employees with high-risk conditions EEOC Technical Assistance Document Pandemic Preparedness in the Workplace and the Americans With Disabilities Act 7

Q: Underlying Conditions During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications? Parse question: –Pandemic – widespread but not necessarily severe –Asking employees Without influenza symptoms To disclose conditions like asthma, diabetes, cancer treated with chemotherapy 8

Examples of Pandemic-Related Employer Activities Regulated by the ADA Disability-Related Inquiries (i.e., a question likely to elicit information about a disability) Asking employees about underlying conditions that include many disabilities like cancer, diabetes, serious asthma Asking employees if they are immuno-compromised Medical Examinations (i.e., a procedure or test that seeks information about an individual's physical or mental impairments or health) Medical tests to determine general health status (unless it is given as part of an employers voluntary wellness program) Return-to-work screens for pandemic illness 9

ADA Regulates When Employers May Ask Disability-Related Inquiries and Require Medical Exams Generally, a disability-related inquiry or medical examination of an employee may be allowed only when an employer "has a reasonable belief, based on objective evidence, that: –An employee's ability to perform essential job functions will be impaired by a medical condition; or –An employee will pose a direct threat due to a medical condition. 10

Direct Threat Direct Threat defined: Significant risk to health or safety that cannot be eliminated by reasonable accommodation Finding of direct threat requires an individualized assessment of present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. 11

Showing a Reasonable Belief, based on Objective Evidence that a Person will Pose a Direct Threat due to 2009 H1N1 –Objective evidence = current public health information from local, state, federal public health authorities. Expect localized conditions. –Reasonable belief based on the current public health information, at the time employer makes the decision (information changes quickly). 12

Pandemic Preparedness If the employer is aware of an employees respiratory condition since the employee has previously asked for telework during ozone alerts, can the employer ask the employee to be on telework even if the employee has not asked for a reasonable accommodation? May the employer separate an employee with a known condition in the workplace? 13

Pandemic Preparedness Is H1N1 a disability? 14

Title I, Americans with Disabilities Act As amended in 2008, Congress mandated a broad construction of the definition of disability: - Impairment that substantially limits major life activity; - Record of having such an impairment; or - Regarded as having such an impairment. EEOC said seasonal flu is not a disability. 15

Is H1N1 a Disability? CDC Guidance for Businesses and Employers To Plan and Respond to the Influenza Season – ness/guidance.htmlhttp:// ness/guidance.html Two levels of recommendations –Now, like Spring and Summer 2009 –Under Conditions with Increased Severity Compared to Spring/Summer

Employer Response to H1N1 Is Permitted by the ADA –If H1N1 is not a disability (i.e., like seasonal flu), then ADA is not implicated in inquiries, exams, orders to stay home –If H1N1 is a disability (i.e., substantially limiting), then employer must satisfy ADA standards for inquiries/exams and actions But then H1N1 will likely pose a direct threat, so inquiries and actions would be permitted 17

Pandemic Preparedness What can employers do when faced with an H1N1 related concern voiced by an employee with a disability for which they have no reliable answer? Take steps to include employees with disabilities in your Continuity of Operations Plan (COOP) 18

Pandemic Preparedness May an ADA covered employer send employees home if they display influenza like symptoms during a pandemic? May an ADA covered employer take its employees temperatures to determine whether they have a fever? 19

Pandemic Preparedness As an employer, how can I best make a direct threat determination based on information from health authorities? What if the health authorities do not characterize the pandemic flu as severe, but there are reports it has been spreading rapidly in a specific community for individuals with conditions such as cancer, diabetes, HIV/AIDS? 20

Pandemic Preparedness May an employer covered by the ADA compel all of its employees to take the influenza vaccine regardless of their medical conditions? 21

Pandemic Preparedness Resources One-stop access to U.S. Government flu information flu.gov/ Flu.gov web page concerning Persons with Disabilities H1N1 Flu Information for People with Disabilities and Their Caregivers or Personal Assistants

Pandemic Preparedness Resources SHRM Publication – Doing Business During an Influenza Pandemic A Toolkit for Organizations of All Sizes Human Resource Policies, Protocols, Templates, Tools, & Tips Flu.gov Human Resource Policies - FAQs JAN Pandemic Flu Resource Listing

Pandemic Preparedness Questions 24