During a flu outbreak, may an employer track whether or not employees and their family members or associates have contracted pandemic influenza? If so, and as part of that tracking, may the employer require them to disclose whether they have, or have been exposed to, pandemic influenza?
Yes, during a pandemic, the Americans with Disabilities Act1 (ADA) permits employers to require employees to disclose whether they have or have been exposed to pandemic influenza. Employers also may ask about employee’s family members and associates. Employers should be aware, however, that treating an employee adversely because of a family member’s or associate’s disability is prohibited by the ADA. To protect privacy rights, the ADA requires employers to keep medical information confidential (i.e., maintained on a separate form and in a separate medical file). _________________ 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
Related Questions:
- 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?
- 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?
- 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?
