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.

Note: As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.

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.

Last Reviewed: 10/02/2009

• 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?
• In light of the ADA requirements, how may employers ask employees about factors, including chronic medical conditions, that may cause them to miss work in the event of a pandemic?
• During a pandemic, may an employer require its employees to adopt infection control practices?
• May an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of a pandemic virus?

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