United States: Planning For A Pandemic: The EEOC Issues Guidance

Last Updated: October 28 2009
Article by Terri M. Solomon and Ronit M. Gurtman

Each year an average of 36,000 people die and over 200,000 people are hospitalized in the United States due to flu-related complications.1 In addition to seasonal flu, an outbreak of H1N1 influenza (often referred to as "Swine Flu") has greatly increased the number of people at risk this flu season.

The outbreak of the H1N1 virus has reached pandemic levels, prompting government and private action. On October 23, President Obama declared a National Emergency in response to the H1N1 influenza pandemic.2 Federal, state, and local governments have created comprehensive plans setting forth public health strategies and guidance for communities, businesses, and individuals to plan for, and respond to, influenza outbreaks.3 Many employers are devising individualized plans to help prevent the spread of the virus in their workplace and to ensure continued operations in the event of an outbreak affecting their employees.

Employers must pay careful attention to the legal implications of their actions in implementing flu prevention and containment measures. Recently, the United States Equal Employment Opportunity Commission (EEOC) published guidance for employers on how to handle pandemic influenza without implicating the Americans with Disabilities Act (ADA), which prohibits disability-based discrimination ("EEOC Guidance").4 The EEOC also issued a notice reminding employers to avoid national origin discrimination in dealing with H1N1.5 In addition to the discrimination laws, employers' actions, or inactions, may implicate other laws such as the Occupational Safety and Health Act (OSHA); the Family and Medical Leave Act (FMLA); privacy laws; workers' compensation, and disability benefits laws.

EEOC Guidance

The EEOC Guidance sets forth the relevant ADA principles and explains, in a question and answer format, how these principles will be applied during various stages of a pandemic. The EEOC Guidance is not legally binding on employers, but it sheds light on how the EEOC will interpret the provisions of the ADA when conducting its investigations into claims of discrimination. Relying on the agency's own prior analyses of the ADA, the EEOC Guidance elaborates on how these same principles will apply to employers dealing with a pandemic. The EEOC Guidance explains how the EEOC will interpret a "direct threat," a "reasonable accommodation," an "undue hardship," a "disability-related inquiry" and a "medical exam" when evaluating employer practices and whether those practices are discriminatory or justifiable under the circumstances of a pandemic outbreak.

Most importantly, the EEOC Guidance recognizes that such analyses and determinations may be modified depending on the severity and pervasiveness of the pandemic. The EEOC Guidance acknowledges that the pandemic may become so severe that employers' interests in protecting themselves and their businesses from the spread of disease may outweigh employees' rights under the ADA and other antidiscrimination laws. The EEOC Guidance states that should the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), or other objective health organizations determine that certain precautionary measures are warranted due to the escalation of the severity or pervasiveness of the pandemic, their determinations would be controlling, and the EEOC Guidance will be modified accordingly.

The EEOC Guidance enumerates certain employer practices that are permissible during the various stages of a pandemic. For example, before a pandemic, employers may make inquiries that are not disability-related, such as whether an employee will not be available, for any reason, to work during a pandemic outbreak, without requiring the employee to specify his or her reason for not being available. Because an employee may be unavailable for any number of reasons, including childcare or transportation issues, the question is not likely to elicit information about a disability, but it will enable the employer to gauge the availability of its workforce if there is an outbreak and plan accordingly. Employers may also require post-offer medical examinations to determine the general health status of prospective employees, so long as these exams are given across the board to all entering employees in the same job categories. However, job offers generally may not be rescinded because of the results of these exams, unless the applicant would pose a "direct threat."

During a pandemic, employers may send home employees who are exhibiting flu-like symptoms and question employees who report illness regarding the nature of their symptoms. If the pandemic influenza is mild, the inquiries and actions would not be considered disability-related. If the pandemic is severe, even if disability-related, the inquiries and actions would be justified by a reasonable belief based on objective evidence that the influenza poses a direct threat.

Despite the interests of employers in ensuring business continuity and protecting their employees, there are certain things that employers are prohibited from doing. For example, before an actual pandemic, employers may not question employees specifically about any medical conditions predisposing them to complications from influenza, as this would be a "disability-related inquiry." Even during a pandemic, employers may not question employees who do not exhibit flu-like symptoms about any such medical conditions. Employers are also prohibited from taking employees' temperatures to determine whether they have a fever, as this would qualify as a "medical examination" under the ADA. However, the EEOC Guidance acknowledges that the aforementioned actions may become permissible if the severity and pervasiveness of a pandemic, as determined by a local, state, or federal health authority, poses a direct threat and therefore warrants such action.

Mandatory Vaccinations

One effective means of preventing and containing the spread of influenza is vaccination against the virus. There has been a wave of controversy, however, surrounding the swine flu vaccine. In fact, a group of health care professionals have filed suit in Washington, D.C., asking courts to stop the distribution of the swine flu vaccine, which they allege was approved too quickly by the Food and Drug Administration (FDA), without adequate testing for safety and effectiveness. Because of this public uproar, and general fears about getting painful injections, employees may be resistant to getting vaccinated.

The EEOC Guidance warns employers that they may not compel all employees to get vaccinated. While an employer may generally be able to impose mandatory vaccination requirements, it must provide exemptions for certain employees. For example, under the ADA, an employee who has a disability preventing him or her from getting a flu vaccine, such as a severe allergy to eggs or an underlying medical condition that might be compromised by the flu vaccine, may be entitled to an exemption from a vaccination requirement, which would be considered a reasonable accommodation, barring any undue hardship to the employer. Under the ADA, an "undue hardship" would be a "significant difficulty or expense."

Similarly, under Title VII of the Civil Rights Act (Title VII), an employee may be entitled to an exemption from vaccination because of a sincerely held religious belief, practice, or observance that prevents the employee from getting the influenza vaccine. This also would be considered a reasonable accommodation under Title VII, barring an undue hardship to the employer. Under Title VII there is a lower standard than under the ADA for establishing an "undue hardship," which, under Title VII is "more than de minimis cost" to the operation of the employer's business.

In August 2009, New York became the only state in the United States to adopt an emergency regulation requiring most health care workers who come into contact with patients to get annual vaccinations for both seasonal and swine flu by no later than November 30, 2009.6 The goal of the regulation, issued by the New York State Commissioner of Health, is to protect patients, who are particularly vulnerable to the influenza virus and its effects, from exposure to the virus. The regulation provides a limited exemption for workers with "medical contraindications," but not for those with a religious or ideological opposition to the vaccination. The Department of Health's rationale is that religious and ideological opposition does not sufficiently outweigh the damage that would be caused to patients by exposure to the virus, and therefore an accommodation to exempt such employees would cause an undue hardship for the employer under Title VII.

In response to the emergency regulation, several unions and other groups filed suit in New York, challenging the mandatory vaccinations and the authority of the New York State Health Commissioner to adopt such a regulation. On October 16, 2009, New York State Supreme Court Justice Thomas J. McNamara issued a temporary restraining order in one of the lawsuits filed in Albany, proscribing the mandatory vaccination. The New York State Commissioner of Health and the New York State Hospital Review and Planning Council plan to vigorously defend the suit and the Commissioner's authority to mandate vaccinations, relying on an earlier court ruling that rejected employees' challenges to regulations requiring mandatory rubella vaccinations and annual tuberculosis testing for healthcare workers.7 The court scheduled an October 30 hearing regarding whether the restraining order should be lifted. Additional suits, including one brought by a nurse in Manhattan, are pending in other New York state courts. While some opponents to the regulation oppose the vaccine itself, others merely oppose the mandatory nature of the requirement, arguing that it impinges on the rights of individuals to choose and, in adopting such regulations, the Commissioner exceeded his authority.

In a surprising development that could make the New York litigation moot, the New York State Health Department announced on October 22, 2009 that the mandatory vaccination requirement for healthcare workers is suspended.8 According to the Health Department, the policy change is due to a shortage of flu vaccine, and was not influenced by the pending litigation. It is unclear whether the New York State Health Department will reinstate the mandatory vaccine requirement once the flu vaccine becomes more widely available.

Similarly, a lawsuit was filed by the Washington State Nurses Association against a private health care provider that has voluntarily implemented a mandatory vaccination requirement for nurses at its multiple locations throughout the state. Interestingly, the nurses' union said in a statement that it supports a voluntary vaccination program, but that any mandatory policy should be overseen by the state or federal government.9

In addition to exposure to discrimination and failure to accommodate claims, employers that adopt vaccination programs, whether mandatory or voluntary, face the risk of workers' compensation claims for injuries resulting from vaccinations. On the other hand, an employer that does not adopt measures to prevent the spread of the influenza virus at work adequately may face liability for failure to comply with its duty to provide a safe workplace under OSHA.

Other Legal Risks for Employers

Employers will face many challenging issues in preparing for and dealing with an influenza pandemic. As discussed above in connection with the EEOC Guidance, employers may be restricted in screening employees so as not to violate the ADA, which prohibits employers from making inquiries that will elicit information about a disability and from conducting medical examinations, except under limited circumstances. Employers may also risk discrimination claims under Title VII if employees of certain national origins are singled out because of an irrational fear that they have been exposed to the virus or if employees argue that mandatory vaccines violate their religious beliefs.

In addition to liability issues, employers will face many challenging HR issues, such as implementing telecommuting policies and dealing with absenteeism, both voluntary and involuntary. In employing such practices, employers must consider both the practical challenges of choosing effective means to ensure business continuity, as well as the obstacles involved in ensuring that all adopted policies and procedures are enforced in a nondiscriminatory manner. Employers will have to deal with disability benefits rights, FMLA leave rights, OSHA laws, workers' compensation and other common law legal restrictions and entitlements. Accordingly, employers should carefully review all policies before they implement them.


1 See Centers for Disease Control & Prevention, 2009 H1N1 Flu ("Swine Flu") and You, Questions and Answers (Sept. 24, 2009), http://www.cdc.gov/h1n1flu/qa.htm .

2 See http://www.whitehouse.gov/the-press-office/declaration-a-national-emergency-with-respect-2009-h1n1-influenza-pandemic-0 .

3 See generally http://www.flu.gov; see also Centers for Disease Control & Prevention, Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season (2009), http://www.pandemicflu.gov/professional/business/guidance.pdf .

4 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 2009), http://www.eeoc.gov/facts/pandemic_flu.html.

5 See EEOC, Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu) (2009), http://www.eeoc.gov/facts/h1n1.html . The notice reminds employers that Title VII of the Civil Rights Act prohibits employment discrimination on the basis of national origin against both legal and undocumented workers, identifying Mexicans as a protected class of workers. This reminder is particularly relevant for employers who may discriminate against employees due to a baseless fear that the employee has been exposed to the H1N1 virus because of his or her national origin.

6 New York State Department of Health, Mandatory Flu Vaccine for Health Care Workers (Sept. 24, 2009), http://www.health.state.ny.us/press/releases/2009/2009-09-24_health_care_worker_vaccine_daines_oped.htm.

7 See Ritterband v. Axelrod, 562 N.Y.S.2d 605 (N.Y. Sup. Ct. 1990).

8 New York State Department of Health, "Governor David A. Paterson Announces Suspension Of Flu Shot Mandate For Health Care Employees Due To Shortage Of Vaccine." (Oct. 22, 2009), http://www.ny.gov/governor/press/press_1022094.html .

9 Puget Sound Business Journal, "Mandatory flu shots? Washington nurses say no." (Oct. 1, 2009), http://seattle.bizjournals.com/seattle/stories/2009/09/28/daily52.html#". .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Terri M. Solomon
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions