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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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 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: 08/31/2011

• 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?
• 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?

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