Labor & Employment Law — 10/15/09

EEOC updates TAD on ADA-compliant employer pandemic preparedness

The US Equal Employment Opportunity has updated its technical assistance document (TAD) addressing basic information and frequently asked questions about workplace preparation for pandemics in the context of employer obligations under the ADA. The document, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, is posted on the federal agency’s website at http://www.eeoc.gov/facts/pandemic_flu.html.

The TAD was updated in light of developments in the prevalence of the H1N1 virus, EEOC Assistance Legal Counsel Carol Miaskoff told CCH on October 9, 2009. Last Spring, when the guidance was issued, the focus was on preparation. Supplementation was necessary because we are now essentially in a pandemic and a focus on preparation is not enough, Miaskoff said. The updated TAD also addresses many questions that employers are actually faced with now that the virus has become widespread.

“If a pandemic hits hard, an employer can pretty quickly hit high levels of absence that affect business operations,” Maskioff pointed out. Therefore, planning is important. With planning, employers can determine the critical positions that are required for the business to function and how that need will be met.

The updated TAD also helps employers draw the line as to when questions regarding employees’ health conditions are disability-related, and thus, implicate the ADA, and when an inquiry falls outside the ADA’s prohibitions.

Typically, in the pandemic context, whether an employee is a direct threat is the issue of concern to employers, Miaskoff said. “A ‘direct threat’ is ‘a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,’” according to the TAD. When individuals with disabilities pose a direct threat despite reasonable accommodations they are not protected by the nondiscrimination provisions of the ADA.

The purpose of the EEOC’s TAD is to provide information about Titles I and V of the Americans with Disabilities Act (ADA) and pandemic planning in the workplace. It identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning.

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