When communicating with employees before, during, or after a pandemic, are there restrictions on the type of information that can be shared?
Category: Equal Employment Opportunity and Privacy Issues Questions
Sub-Category: Privacy Issues
Answer:
Providing information to your employees on the status of the pandemic, as well as your pandemic policies and plans, is encouraged. This type of knowledge will likely have a positive impact on your workforce and business. Note that under the Americans with Disabilities Act1 (ADA), employers are required to keep employees’ medical information (e.g., information about the nature of an employee’s illness) confidential (i.e., maintained on a separate form and in a separate medical file).
Business information regarding the status of an employee may be circulated to sustain operations so long as that information does not disclose confidential medical information about the employee. For example, a business could communicate, for the purpose of business continuity, that an employee is not currently at work and that the employee may be out office for several weeks.
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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 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.
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Last Updated: 01/24/2008
