Legally Navigating the H1N1 Pandemic

by Kraig Marton, Esq. & Jerrie Martinez-Palombo, SPHR

Flu season is upon us. Employees have begun to call in sick and the CDC is warning employers to prepare to have approximately 40 percent of their workforce affected by H1N1. Government agencies are dispersing new regulations daily and employers are left with the difficult task of sifting through information as they scramble to deal with this pandemic and simultaneously manage their business.

Employers need pragmatic guidelines for dealing with the H1N1 pandemic. Any informed employer should know about the Equal Opportunity Commission's - "EEOC" - recent rulings on the Americans with Disabilities Act (ADA) and how they apply to H1N1.

According to the EEOC, ADA pertains to the H1N1 pandemic in three ways: 1) ADA regulates employer disability related inquiries and medical examinations even for employees who do not have ADA disabilities; 2) ADA prohibits employers from excluding individuals covered under ADA from the workplace unless they pose a direct threat; and 3) ADA provides for reasonable accommodations for those with disabilities during a pandemic.

The ADA applies to all employers with 15 or more employees. It requires that every such employer "provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment related opportunities available to others."

What health related questions can an ADA covered employer ask employees?

The ADA limits an employer's ability to make "disability-related inquiries" of its existing employees. The ADA also limits medical examinations of employees to certain limited circumstances.

The EEOC better explains "disability-related inquiries" by using the example of inquiring about a person's compromised immune system, which can be associated with cancer or HIV. Asking about medical conditions that may make an employee more susceptible to H1N1 would be considered a disability-related question.

However, asking employees about common cold symptoms or flu symptoms that do not pertain to a disability, such as "Do you have a fever?" are considered acceptable. It is fine to ask an employee if they are experiencing symptoms, such as fever or chills and a cough or sore throat, but remember to keep such matters confidential. Employers also have a right to know why an employee was absent from work and can inquire as to reason the person was out.

When can an employer require an employee to see a medical provider?

ADA also prohibits employers from requiring medical examinations of existing employees "unless they are job related or a business necessity." For an employer to require such an examination, the employer "must have a reasonable belief based on objective evidence obtained that an employee's ability to perform essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition."

ADA defines direct threat as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." The question becomes, is being diagnosed with H1N1 considered a direct threat?

At present, the H1N1 is not considered a "direct threat." According to the EEOC, H1N1 is declared a direct threat if the CDC or local public health officials declare that it is. Such a declaration would require them to provide information that the H1N1 has become more severe.

The EEOC states that public health recommendations on state and local levels can change quickly and employers are strongly urged to stay apprised of the most current H1N1 information issued by the CDC and their local public health officials. In the event that H1N1 is declared a "direct threat" employers may ask disability related questions or require medical examination of employees displaying influenza symptoms in order to detect those that may be at higher risk of influenza complications and better protect their work force.

Presently, employers can require that absent employees provide a doctor's note that attest to their fitness for duty upon returning to work. However, employers should be aware that mild cases of H1N1 do not require medical treatment. Requiring a doctor's note to return to work may discourage some ill individuals from staying home which would further spread the virus. Employers are also cautioned that if they do enact a policy which requires a doctor's note for unscheduled absences, that apply the policy consistently with all employees - not just those with H1N1 - as this will reduce the possibility of a discrimination claim.

The ADA is also very clear that any medical information about an employee obtained via medical examination or disability related inquiry be kept confidential and maintained in a medical file separate from an employee's personnel file. Employers may, however, inform managers or supervisors of the request if an accommodation or work restriction is necessary.

Do I have to provide reasonable accommodations to those with a disability during this H1N1 pandemic?

ADA requires employers to provide "reasonable accommodation" to applicants and employees with a disability so that they may have an equal opportunity to apply and/or perform a job. Only when an accommodation poses an "undue hardship" and requires substantial difficulty or cost for an employer are they not required to accommodate.

Chances are some employers will have employees with disabilities, especially those with a compromised immune system, request an accommodation during this flu season. The EEOC confirms that even during a pandemic, employers must continue to comply with reasonable accommodations. Allowing a sort amount of time off to recuperate is generally seen as a reasonable accommodation. It is only lawful for an employer to exclude a disabled employee from employment, if the employer can illustrate that the disabled person poses a direct threat after reasonable accommodation has been made.

Can an Employee send its ill employees home?

An employer does not violate the ADA if it sends its ill employees home. Advising such workers to go home is not a disability-related action if the illness is reasonably appears to be H1N1 or other communicable disease.

What can employers do to maintain a productive workforce during this pandemic?

During this pandemic there are many things employers can do to reduce the spread of infection and maintain a productive workforce. Employers can enact infection control measures such as good hygiene and hand washing amongst its employees. When possible employers can also request employees telecommute from home, which will also eliminate the spread of infection.

Employers may send employees who report flu like symptoms or have an elevated temperature or fever home, as this too will reduce the spread of influenza. In conjunction with the CDC, employers may also require sick employees to remain home until at least 24 hours after their fever subsides.

Though employers cannot require all employees receive the H1N1 vaccination, they can encourage employees to obtain the H1N1 vaccination and even provide them with information as to where vaccinations are being given.


During this pandemic it is a good idea for employers to be alert to symptoms of H1N1 in the workplace. If an employee appears ill, questions can be asked about the symptoms and the employee can be sent home. An employer should also take reasonable efforts to provide a workplace that limits the possibility of a spread of infection.

However, this article is intended to provide general guidelines and not specific advice about any particular circumstance. In the event of questions or concerns you should contact counsel.

To learn more, you can see the EEOC's recently issued guidelines on H1N1 here:

The EEOC's general ADA enforcement guidelines on these topics can be found here: