Privacy Issues - FAQs:

May employers ask employees if they have children or other family members for whom they may need to take care of in the event of a pandemic (for example, if schools were closed)? May they be asked if they have someone else who can take care of these family members? May this information be shared with supervisors and managers?

Yes, you may ask if employees may need to be absent to care for others in the event of a pandemic and you may share the information with supervisors and managers. Although there are no Federal privacy laws that are applicable in these circumstances, there may be state laws governing privacy of which you should be aware. It is recommended that prior to any pandemic flu outbreak, you consult with legal counsel and human resource specialists to develop a plan of action specific to your workplace.

In addition, the Family and Medical Leave Act (FMLA) makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. Therefore, employers cannot discourage a covered and eligible employee from taking FMLA leave if the employee is needed to care for a qualifying family member (a spouse, son, daughter, or parent) with a serious health condition or when the employee is unable to work because of the employee’s own serious health condition. The FMLA protections would not apply to leave needed, for example, for an employee to attend to his healthy children whose day care provider was temporarily closed.

Finally, employers are reminded that under Title VII of the Civil Rights Act of 1964, it would be discriminatory to only ask the above questions to its employees of a specific sex (e.g., females) and take adverse actions against those employees based on the answers received. (For more information regarding sex-based discrimination, see the Equal Employment Opportunity Commission’s website.)

Note: As an overall matter, employers should be guided in their relationship with their employees by federal, state, and local employment law, and by the company-specific application of these laws as reflected in employee handbooks, manuals, and contracts (including bargaining agreements).

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.

May employers ask employees if they may have a higher risk of infection, for example, a compromised immune system?

Generally, an employer may not ask employees disability-related questions (i.e., a question likely to elicit information about a disability), unless the questions are job-related and consistent with business necessity. A question about whether an employee has a compromised immune system may be considered disability-related under the Americans with Disabilities Act¹ (ADA) (see example 3 under question #2 in the U.S. Equal Employment Opportunity Commission (EEOC) Fact Sheet, Questions & Answers About Cancer in the Workplace and the Americans with Disabilities Act (ADA)).

A disability-related question is job-related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence that an employee may be unable to perform the essential functions of a job or may pose a direct threat (i.e., a significant risk of substantial harm to the employee or others in the workplace) due to a medical condition. (For a full explanation of this standard, see the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act.)

May the employees be asked questions about family members, or other potential exposures to pandemic influenza?

Asking an employee if he or she has a family member who has been exposed to pandemic influenza probably would not be considered a prohibited disability-related question (i.e., a question likely to elicit information about a disability) under the ADA. As a best practice, employers should ask these types of questions in accordance with a company-wide, pandemic-related policy or guidance.

May this information be shared with supervisors and managers?

Employee medical information is confidential under the ADA. Employers may not share it with others within the organization, subject to limited exceptions. Two relevant exceptions are:

Employers may disclose medical information to supervisors and managers where necessary to provide a requested accommodation or to meet an employee’s work restrictions, and
Employers may disclose medical information to first aid and safety personnel if an employee would need emergency treatment or assistance because of a medical condition.

(See the EEOC’s publication entitled, The ADA: A Primer for Small Business, for additional information.)

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¹The EEOC enforces Title I of the ADA. The ADA’s provisions in regards to disability-related inquiries, medical examinations, and confidentiality apply to all applicants and employees of covered employers, regardless of whether those individuals have disabilities, as defined by the ADA. By contrast, other ADA requirements apply only if an applicant or an employee is an individual with a disability under the ADA.

It cannot be definitively established in advance, however, whether a future pandemic influenza would rise to the level of a disability under the ADA. Therefore, this answer provides guidance for employers that would comport with the ADA even if a future pandemic illness was found to be an ADA disability.

For the purpose of estimating pandemic absenteeism levels, may employers obtain medical information about employees’ general health status to identify those employees who may be at a greater risk of contracting pandemic influenza?

No. As a general rule, the Americans with Disabilities Act (ADA) prohibits “disability-related inquiries” of employees, and questions about “medical problems” are “disability-related” because they are likely to disclose who has a disability. If the goal is to estimate absenteeism before a pandemic occurs, then employers should not ask disability-related questions. Rather, employers should ask whether employees are likely to be absent during a public health crisis, such as a pandemic, for a range of reasons, such as child care responsibilities, school closures, closure of public transportation, or medical reasons. If the question is posed as, “Do any of these concerns apply to you? Yes or No,” then the question as a whole is not disability-related. This simple “Yes or No” answer will get the employer information about who is likely to be absent in the event of a public health crisis, without asking about their medical problems.

If an influenza pandemic were to occur, and become serious according to the CDC or local, state or other federal public health officials, ADA-covered employers may have grounds to conclude that some employees will face a “direct threat” (or a significant risk of substantial harm) if they catch pandemic influenza. In this circumstance, ADA-covered employers may make disability-related inquiries, i.e., ask employees if they have a compromised immune system, or another medical problem that puts them at high risk of serious illness related to pandemic influenza.

May an employer access employees’ medical information already in its possession for the purpose of pre-pandemic planning?

The Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules only covers certain health care providers, health care clearinghouses, and health plans. The Rule generally does not apply to the conduct of employers and, thus should not affect employer access to or use of medical information in its possession. Even if an employer is a sponsor of a health plan or a provider of health care, employment records held in its role as an employer are not protected by the Privacy Rule. The requirements of the Rule should be considered if an issue arises in regard to the conduct of employer-sponsored health plans.

The Americans with Disabilities Act (ADA) requires employers to keep medical information about employees confidential. Specifically, the ADA requires that employers keep employee medical information in separate files apart from personnel records and prohibits disclosure (which would include accessing the information). An employer may share otherwise confidential medical information with supervisors and managers where necessary to provide a requested accommodation or to meet an employee’s work restrictions, or with first aid and safety personnel if an employee would need emergency treatment or assistance because of a medical condition. (See the U.S. Equal Employment Opportunity Commission’s publication entitled, The ADA: A Primer for Small Business, for additional information.)

Before a flu outbreak, may employers survey employees to identify who may need to stay home, telework, or work an alternate schedule to care for children because they are dismissed from school or child care, consistent with the Community Mitigation Guidance from HHS/CDC?

Yes, prior to an outbreak, employers may inquire which employees may need to stay home, telework or work an alternate schedule to care for children in the event students are dismissed from school and child care centers are closed.

Please keep in mind that asking employees questions, prior to a pandemic, about their health conditions or related absenteeism may raise issues under the Americans with Disabilities Act¹ (ADA).

Although there are no Federal privacy laws that are applicable in these circumstances, there may be state laws governing privacy of which you should be aware. It is recommended that prior to any pandemic influenza outbreak, you consult with legal counsel and human resource specialists to develop a plan of action specific to your workplace.

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May and employer ask for employees' personal contact information, such as phone numbers, email addresses, or contacts where they may be if caring for family members? Can that information be shared with with other employees?

Yes, you may ask for phone numbers and email addresses consistent with any non-discriminatory workplace policy you may have in place. Although there are no Federal laws governing this area, there may be state laws governing privacy of which you should be aware.

Keep in mind that you may not be familiar with all of your individual employees’ personal circumstances and that on occasion, sharing private contact information or other personal information among employees may be objectionable for any number of legitimate reasons. In certain instances, under federal equal employment opportunity law, employers may be liable for workplace harassment that occurs at the hands of fellow employees.

We strongly encourage you to limit the information collected to only that which is necessary, and limit the individuals with whom the information is shared, unless you have the consent of your employees.

As a manager or supervisor, may I tell an employee’s direct supervisor at my company or organization if I know for a fact that the employee has pandemic influenza?

The Americans with Disabilities Act (ADA) allows employers to share employees’ otherwise confidential medical information in limited circumstances. One of these exceptions allows an employer to disclose an employee’s medical information to her supervisor(s) and/or manager(s) where necessary to meet an employee’s work restrictions.

In the event of an influenza pandemic, an employer may alert a supervisor of an employee’s pandemic illness so that the supervisor can implement necessary work restrictions for public health and safety reasons. (See the U.S. Equal Employment Opportunity Commission’s publication, The ADA: A Primer for Small Business, pp. 10-11, for additional information.)

When communicating with employees before, during, or after a pandemic, are there restrictions on the type of information that can be shared?

Providing information to your employees on the status of the pandemic, as well as your pandemic policies and plans, is encouraged. This type of knowledge will likely have a positive impact on your workforce and business. Note that under the Americans with Disabilities Act¹ (ADA), employers are required to keep employees’ medical information (e.g., information about the nature of an employee’s illness) confidential (i.e., maintained on a separate form and in a separate medical file).

Business information regarding the status of an employee may be circulated to sustain operations so long as that information does not disclose confidential medical information about the employee. For example, a business could communicate, for the purpose of business continuity, that an employee is not currently at work and that the employee may be out office for several weeks.

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