EEOC Issues Discrimination Guidelines For The “Swine Flu”
Well, they must have read my Blog discussing the swine flu! Anyway, the Equal Employment Opportunity Commission (EEOC) has issued two “guidance memos” to employers on “H1N1 flu” formerly called “Swine flu” (yep, its has a new name!). The first memo they issued reminded employers not to discriminate against employees on the basis of national origin. This also will apply under California law (Fair Employment & Housing Act).
As you probably already know, the news media carried the stories that the H1N1 virus may have traveled to the United States from Mexico. Some employers began to inquire if they could mandate that employees had to inform their manager when they would be traveling to Mexico and request a doctor’s clearance before they could return to work. We informed those “inquiring minds” that they should not implement any such policy. That advice now appears to be consistent with the new guidelines as noted above (whew, glad that advice was correct! LOL).
The second memo addressed several factors that employers need to keep in mind regarding when an employer can ask employees about health conditions. Under both state and federal law, employers can ask questions about an employees health status or disability under the following conditions:
1. Pre-employment: During the pre-employment appplication and interview process, employers are not permitted to ask questions about a candidate’s health status or disability;
2. Post-offer: Once an offer of employment has been made, but before the new hire starts work, employers are permitted to ask for disability-related information and require medical examinations, so long as all incoming employees in the same job classification are required to answer the same questions or undergo the same examininations;
3. Employment: Once an employee has begun work, employers are permitted to make inquiries into an employees health status or disability only if doing so is for business necessity, or in response to an employee’s request for accommodation or medical leave. California employers can ask for a certification that the leave is necessary but cannot ask for a physician’s diagnosis.
Finally, keep in mind that a person who informs the employer that they have in-fact contracted H1N1 virus may qualify as disabled under both state and federal law, and the employer at that point should apply their normal disability policies and procedures as an accommodation.
