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Although fears from the recent H1N1 flu outbreak–formerly known as "swine flu"–have eased, a reappearance of the flu appears likely once summer ends. The Obama administration recently warned Americans to be ready for an aggressive return of the virus in the fall, and announced plans to begin vaccinations in October, offering states and hospitals money to help them prepare.

In response to these warnings, the federal Equal Employment Opportunity Commission (EEOC) has issued two guidance memos for employers related to the current H1N1 flu outbreak. The first memo reminds employers that they cannot discriminate against employees on the basis of national origin. News reports have indicated that the H1N1 virus traveled to the U.S. from Mexico. Employers should be careful that employees of Mexican descent, especially new hires and applicants, are not shunned or turned away out of fear that they may be carrying the virus.

The second memo addresses several factors employers need to be mindful of regarding when you can ask employees about health conditions. Under both state and federal law, employers can ask questions about an employee's health status or disability under the following conditions:

  • Pre-Employment: During the pre-employment application and interview process, employers are not permitted to ask any questions about an employee's health status or disability.
  • Post-Offer: Once an offer of employment has been made, but before the employee starts work, employers are allowed to ask for disability-related information and require medical examinations, so long as all incoming employees in the same job category are required to answer the same questions or undergo the same examinations.
  • Employment: Once an employee has begun work, employers are permitted to make inquiries into an employee's health status or disability only if doing so is a business necessity (for example, if the inquiry is necessary in order for employers to determine what duties can be assigned to the employee), or in response to an employee's request for accommodation or medical leave. In the case of medical leave, California employers can ask for certification that the leave is necessary but cannot ask for a physician's diagnosis.

In certain cases, a person with the H1N1 virus may qualify as disabled under both state and federal laws, and employers should apply their normal disability policies and procedures when an employee asks for accommodation.

–Hedley Lawson