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.

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.

Last Reviewed: 09/01/2011

• 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?
• May employers ask employees if they may have a higher risk of infection, for example, a compromised immune system?
• During an flu pandemic, can a healthy employee refuse to come to work, travel, or perform other job duties because of a belief that by doing so, he or she would be at an increased risk of catching the flu?

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