Before a pandemic, 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?
Category: Equal Employment Opportunity and Privacy Issues Questions
Sub-Category: Privacy Issues
Answer:
No. Prior to a pandemic, the Americans with Disabilities Act1 (ADA) would prohibit employers from asking employees to disclose medical conditions that could be disabilities (e.g., heart conditions, HIV, immune system deficiencies) in an effort to identify employees who may be at a greater risk of contracting pandemic influenza. However, employers may inquire about all factors that may cause absenteeism during a pandemic. Beyond illness, these factors could include caregiver or child care responsibilities and public transportation issues.
Below is an example of an ADA compliant questionnaire that may be given to employees before a pandemic to help predict worker absenteeism levels or the need for telework resources during a pandemic health crisis. Note that the questionnaire does not require employees to disclose personal medical information about a potential disability under the ADA, and it is anonymous in that it does not ask for any identifying information from the employee (e.g., name, work phone number, office number, etc.). These features are key to the questionnaire’s legality under the ADA.
_________________________________________________
Questionnaire for Pandemic Influenza Preparation
(To Be Administered to Employees in Advance of a Pandemic)
Directions: Answer the following question by checking “yes” or “no.” If your answer is “yes” to any of the factors, answer “yes” to the whole question without specifying the factor that applies.
In the event of a pandemic, would you be unable to come to work because of any one of the following factors:
i. If schools are closed, you would need to stay home full or part-time to take care of a child;
ii. You would need to stay home full or part-time to care for other dependents;
iii. You or a member of your household fall into categories identified by the Centers for Disease Control and Prevention as being at high risk for serious health complications from a pandemic influenza virus (e.g., persons with compromised immune systems due to cancer, HIV, history of organ transplant, or other medical conditions; persons less than 65 with underlying chronic conditions; persons over 65); and/or,
iv. If public transit is sporadic or unavailable, you would be unable to get to work.
Employee Answer: YES _____ NO _____
_________________________________________________
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.
Workplace Frequent Questions by Category:
Last Updated: 01/24/2008
