The 2009-2010 influenza season officially began October 4, 2009, and the outlook is grim. According to the Centers for Disease Control and Prevention, as of the end of September, 27 states are reporting widespread influenza activity (the CDC’s highest level). They are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Tennessee, Virginia, Washington, and Wyoming.  The CDC says any reports of widespread influenza activity in September are very unusual.
 
The CDC’s latest analysis of flu activity shows that, as of the end of September, visits to doctors for influenza-like illness continue to increase in some areas of the country and overall levels are higher than expected.  In addition, total influenza hospitalization rates for laboratory-confirmed influenza are higher than expected for this time of year for adults and children.  

Given the likelihood that influenza will continue to spread and adversely affect economic activity, the Equal Employment Opportunity Commission has published new technical guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” reminding employers of their rights and requirements under the Americans with Disabilities Act in relation to pandemic planning.  The EEOC says:

• Employers may ask employees whether they have symptoms of a cold or the seasonal flu because it is not a disability related inquiry.
• Whether pandemic influenza rises to the level of a “direct threat” depends on the severity of the illness.  Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
• Employers may use an ADA-compliant pre-pandemic employee sample survey for employers, which the agency has prepared.  It combines medical and non-medical inquiries about the ability of an employee to come to work during a pandemic. The objectives are to provide employers with information they need to plan for a pandemic and to shield employers from receiving information about chronic diseases or illnesses that employees might have.
• Employers may send employees home if they display influenza-like symptoms.
• If employees report feeling ill at work or call in sick, employers may ask them if they are experiencing influenza-like symptoms, such as a fever, chills, and cough or a sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
• Measuring an employee’s body temperature is a medical examination. Therefore, it must be justified by being job-related and consistent with business necessity.  The pandemic influenza symptoms could meet this standard if they become more severe than the seasonal flu or the H1N1 virus during the 2009 spring/summer period, or if H1N1 becomes widespread in a community as assessed by state and local health authorities or the CDC. 
• If the pandemic influenza remains similar in severity to seasonal influenza or the 2009 spring/summer H1N1 virus outbreak, employers may not ask employees who do not have symptoms of H1N1 flu to disclose whether they have a medical condition that could make them especially vulnerable to influenza complications.
• Employers may require employees to adopt infection control practices in the workplace.
• Employers generally should consider encouraging, rather than requiring, employees to get the seasonal and H1N1 influenza vaccines.  An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents the employee from taking the vaccine.  Title VII might entitle some employees to an exemption also where an employee’s sincerely-held religious belief, practice or observance prevents him or her from taking the vaccine. 
• During a pandemic, an employer may ask an employee why he or she has been absent from work if the employer suspects a medical reason.
• Employers may require employees who have been away from work during a pandemic to provide a doctor’s note certifying their fitness to return to work.  However, as a practical matter, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation.  Therefore, employers may need to adopt new approaches, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

Jackson Lewis attorneys are available to assist with any questions you may have or assistance you may need in developing a plan specific to your workplace needs.