May an employer rescind a job offer made to an applicant based on the results of a post-offer medical examination, if it reveals that the applicant has a medical condition that puts him/her at increased risk of complications from the flu?

No, unless the applicant would pose a direct threat within the meaning of the ADA. A finding of “direct threat” must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities. The finding must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job, after considering, among other things, the imminence of the risk; the severity of the harm; and the availability of reasonable accommodations to reduce the risk. Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat level.

Example: The same international shipping employer offers a financial position at its U.S. headquarters to Steve. This position does not involve regular contact with flight crew or travel to the affected WHO region. Steve’s post-offer medical examination (which is the same examination given to all U.S. headquarters employees) reveals that Steve has a compromised immune system due to recent cancer treatments. Given the fact that the position does not involve regular contact with flight crew or travel, and that the influenza virus has not spread to North America, Steve would not face a significant risk of contracting the virus at work and does not pose a “direct threat” to himself or others in this position. Under the ADA, it would be discriminatory to rescind Steve’s job offer based on the possibility of an influenza pandemic.

Last Reviewed: 10/06/2009

• Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a flu outbreak?
• 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 an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

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