In response to the recent swine flu outbreak, the Equal Employment Opportunity Commission (EEOC) has produced several comments directing employers on how to avoid a potential Title VII or ADA violation.
On May 11, 2009, the EEOC warned that “Swine Flu discrimination” could be considered a violation of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC cautioned employers against discriminating against Mexicans out of fear of swine flu. Essentially, to bring a claim for violation of Title VII, one must first demonstrate that they belong to a protected class, such as race, gender, or—in this case—national origin. By refusing to hire someone of Mexican origin for fear that they are carrying the swine flu, an employer may be causing a disparate impact on a protected class. The caveat: employers should steer clear of refusing to hire persons of Mexican origin.
Additionally, the EEOC recommends that employers institute a neutral policy that requires any employee who contracts the swine flu to take a leave of absence. That will likely insulate an employer from a Title VII violation.
Further, in response to growing concern, the EEOC also disseminated information regarding whether employer requests for health information would violate the Americans with Disabilities Act (ADA). The EEOC responded to this concern in three categories, (1) pre-employment offer, (2) post-employment offer, and (3) current employees.
The short answer is that before an offer for employment is tendered, an employer may not request health information or medical examinations of any kind. However, once an offer is made, but prior to the new employee’s start date, an employer may request such information, regardless of whether it is sufficiently job-related, so long as this procedure is implemented for all similarly situated new hires.
Finally, an employer may only request medical information from current employees if the request is sufficiently job-related and consistent with a business necessity. However, beware of a caveat here as well. When it is acceptable for an employer to request that employees undergo medical examinations, the information collected must remain strictly confidential.
Some final thoughts on employer procedure dealing with swine flu at the workplace - employers may require employees to wear protective equipment such as a face mask on-the-job without concern for a potential ADA violation. Employers may also recommend or require that employees work from home to control an outbreak, so long as an employee is not singled out in the process.
For more information regarding proper employer procedure during the swine flu epidemic, please consult the EEOC, or make an appointment with an employment law attorney.