Order Code RL33609
Quarantine and Isolation:
Selected Legal Issues
Relating to Employment
Updated April 30, 2008
Nancy Lee Jones and Jon O. Shimabukuro
Legislative Attorneys
American Law Division

---

Quarantine and Isolation:
Selected Legal Issues Relating to Employment
Summary
The emergence and rapid spread of a new avian influenza virus (H5N1) and its
potential for causing a human influenza pandemic have given rise to issues relating
to the use of quarantine and isolation. Questions relating to employment are among
the most significant issues, since, if individuals fear losing their employment or their
wages, compliance with public health measures such as isolation or quarantine may
suffer. Although the common law doctrine of employment-at-will, which allows an
employer to terminate an employee from employment for any reason other than those
prohibited by statute, is generally applicable, there is an exception to this doctrine for
public policy reasons. This report examines the employment-at-will doctrine,
possible application of the public policy exception in the case of a potential influenza
pandemic, the Family and Medical Leave Act (FMLA), and possible application of
the nondiscrimination mandates of the Americans with Disabilities Act (ADA). The
report will be updated as developments warrant.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wrongful Discharge in Violation of Public Policy . . . . . . . . . . . . . . . . . . . . . . . . 3
The Family and Medical Leave Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Americans with Disabilities Act (ADA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Overview of the ADA Definition and Employment Provisions . . . . . . . . . . 8
Definition of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Employment Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Application of the ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Definition of Disability and Isolation . . . . . . . . . . . . . . . . . . . . . . . . . 11
Definition of Disability, Employment Discrimination,
and Quarantine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Definition of Disability and Snow Days . . . . . . . . . . . . . . . . . . . . . . . 14
Summary of ADA Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

---

Quarantine and Isolation: Selected
Legal Issues Relating to Employment
Introduction
The emergence and rapid spread of a new avian influenza virus (H5N1) and its
potential for causing a human influenza pandemic have given rise to issues relating
to the use of quarantine and isolation.1 Questions relating to employment are among
the most significant issues since if individuals fear losing their employment or their
wages, compliance with public health measures such as isolation or quarantine may
suffer.2 Although the common law doctrine of employment-at-will, which allows an
employer to terminate an employee from employment for any reason other than those
prohibited by statute, is generally applicable, there is an exception to this doctrine for
public policy reasons. This report will examine the employment-at-will doctrine,
possible application of the public policy exception in the case of a potential influenza
pandemic, the Family and Medical Leave Act (FMLA), and possible application of
the nondiscrimination mandates of the Americans with Disabilities Act (ADA).
Background
The increased transmission of the H5NI virus among avian populations has
raised concerns about a possible mutation of the virus that might cause a human
1 For a detailed discussion of legal authorities relating to quarantine and isolation, see CRS
Report RL33201, Federal and State Quarantine and Isolation Authority, by Kathleen S.
Swendiman and Jennifer K. Elsea.
2 A survey conducted by the Harvard School of Public Health (HSPH) Project on the Public
and Biological Security asked employed Americans about the problems they might have if
they stayed out of work for various time periods due to an outbreak of pandemic influenza.
The survey found, in part, that although most employed people felt they could miss seven
to ten days of work without serious financial hardship, 25% of those surveyed said they
would face such problems. The survey also indicated that only 19% of employed
individuals were aware of any current plans by their employers for dealing with an outbreak
of pandemic influenza. These findings were described as “a wake-up call for business, that
employees have serious financial concerns and are unclear about the workplace plans and
policies for dealing with pandemic flu.” [http://www.hsph.harvard.edu/press/releases/
press10262006.html]. The Occupational Safety and Health Administration (OSHA) issued
guidance on preparing workplaces for an influenza pandemic that discussed the preparation
of a disaster plan and emphasized the importance of addressing leave and pay issues. See
[http://www.osha.gov/Publications/influenza_pandemic.html].

---

CRS-2
influenza pandemic.3 Whether the H5N1 virus will cause a human influenza
pandemic is unknown, but history suggests that influenza pandemics occur regularly.4
Controlling or preventing an influenza pandemic involves the same strategies used
for seasonal influenza. These strategies are vaccination, treatment with antiviral
medications, and the use of infection control.5 A specifically targeted vaccine would
not be available immediately since the exact strain of the virus would not be known
until the epidemic occurs, and there may be limited supplies of antiviral medications.
Therefore, the use of other infection control measures may be critical. The uses of
quarantine and isolation, as well as social distancing and “snow days,” have been
discussed in the Homeland Security Council’s Pandemic Influenza Implementation
Plan6 as ways to attempt to limit the spread of influenza.7
Quarantine is defined as the “separation of individuals who have been exposed
to an infection but are not yet ill from others who have not been exposed to the
transmissible infection.”8 Isolation is defined as the “separation of infected
individuals from those who are not infected.”9 Social distancing is defined as
“infection control strategies that reduce the duration and/or intimacy of social
contacts and thereby limit the transmission of influenza.”10 Social distancing can
include the use of face masks, teleconferencing, or school closures. “Snow days,”
a type of social distancing, are the recommendation or mandate by authorities that
individuals and families limit social contacts by remaining within their households.11
The Centers for Disease Control and Prevention (CDC) issued interim planning
guidance for communities to mitigate the impact of pandemic influenza.12
3 For a detailed discussion of pandemic influenza, preparedness, and response, see CRS
Report RL33145, Pandemic Influenza: Domestic Preparedness Efforts, by Sarah A. Lister.
4 Homeland Security Council, National Strategy for Pandemic Influenza 1-2 (GPO
November 2005).
5 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation
Plan 107 (GPO May 2006).
6 Id. at 72-73, 107-109.
7 Although the precise efficacity of these measures is not known, a recent study by the
Institute of Medicine indicated that there is a role for community-wide interventions such
as isolation or voluntary quarantine. Institute of Medicine, “Modeling Community
Containment for Pandemic Influenza: A Letter Report,” Dec. 11, 2006.
8 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation
Plan 209 (GPO May 2006).
9 Id. at 207.
10 Id. at 209.
11 Id.
12 Centers for Disease Control and Prevention (CDC), Interim Pre-pandemic Planning
Guidance: Community Strategy of Pandemic Influenza Mitigation in the United States —
Early, Targeted, Layered Use of Nonpharmaceutical Interventions (February 2007),
[http://www.pandemicflu.gov/plan/community/mitigation.html]. The American Public
Health Association has also issued recommendations with regard to comprehensive national
(continued...)

---

CRS-3
This guidance introduced a Pandemic Severity Index, which ranks the severity of a
pandemic like the categories given to hurricanes and links the severity to specific
community interventions. The community interventions include isolation and
voluntary quarantine, school dismissals, and the use of social distancing measures to
reduce contact. The social distancing measures include the cancellation of large
public gatherings and the alteration of workplace environments and schedules to
decrease social density.13 The guidance noted the importance of workplace leave
policies that would “align incentives and facilitate adherence with the
nonpharmaceutical interventions (NPIs)....”14 Strategies to minimize the impact of
workplace absenteeism were discussed in some detail and included the use of
staggered shifts and telework. Unemployment insurance was mentioned as
potentially available, as was disaster unemployment assistance. The guidance also
observed that the FMLA may offer some job security protections.15
Wrongful Discharge in Violation of Public Policy
The employment-at-will doctrine governs the employment relationship between
an employer and employee for most workers in the private sector. An employee who
does not work pursuant to an employment contract, including a collective bargaining
agreement that may permit termination only for cause or may identify a procedure for
dismissals, may be terminated for any reason at any time.
Although the employment-at-will doctrine provides the default rule for most
employees, it has been eroded to some degree by the recognition of certain wrongful
discharge claims brought against employers. In general, these wrongful discharge
claims assert tort theories against the employer. A cause of action for wrongful
discharge in violation of public policy is one such claim. If isolation or a quarantine
were used to attempt to limit the spread of a pandemic influenza virus and an
employee was terminated because of absence from the workplace, a claim for
wrongful discharge in violation of public policy might arise.
A claim for wrongful discharge in violation of public policy is grounded in the
belief that the law should not allow an employee to be dismissed for engaging in an
activity that is beneficial to the public welfare. In general, the claims encompass four
categories of conduct:
! refusing to commit unlawful acts (e.g., refusing to commit perjury
when the government is investigating the employer for wrongdoing);
12 (...continued)
planning for an influenza pandemic. See American Public Health Association, APHA’s
Prescription for Pandemic Flu (February 2007) [http://www.apha.org/NR/rdonlyres/D5017
DB9-F400-4399-A656-939C4C8DF259/0/FLUpolicycomplete.pdf].
13 See CDC, supra note 12 at 19.
14 Id.
15 Id. at 51-52.

---

CRS-4
! exercising a statutory right (e.g., filing a claim for workers’
compensation, reporting unfair labor practices);
! fulfilling a public obligation (e.g., serving on jury duty); and
! whistleblowing.16
Although most states appear to recognize a claim for wrongful discharge in violation
of public policy, it is possible that a state may allow a claim only under certain
circumstances. For example, Texas recognizes such a claim only if an employee is
terminated for refusing to perform an illegal act or inquiring into the legality of an
instruction from the employer.17
While the four categories of conduct identified above represent the classic fact
patterns for a claim of wrongful discharge in violation of public policy, other actions
could be deemed beneficial to the public welfare and result in a wrongful discharge
claim if an employee is terminated for engaging in such actions. Some courts have
broadly defined what constitutes “public policy.” For example, in Palmateer v.
International Harvester Co., the Illinois Supreme Court indicated that
[t]here is no precise definition of the term. In general, it can be said that public
policy concerns what is right and just and what affects the citizens of the State
collectively. It is to be found in the State’s constitution and statutes and, when
they are silent, in its judicial decisions.18
Similarly, in Boyle v. Vista Eyewear, Inc., the Missouri Court of Appeals stated that
public policy “is that principle of law which holds that no one can lawfully do that
which tends to be injurious to the public or against the public good.”19 These broad
definitions suggest that an employee’s isolation or quarantine during a pandemic in
some states could possibly provide a public policy exception to the at-will rule of
employment. It would seem possible for a court to conclude that the isolation or
quarantine of individuals during a pandemic serves the public good and that the
termination of individuals who are isolated or quarantined violates public policy.20
If the government were to direct individuals to isolate or quarantine themselves
either because they are infected or because of the risk of infection, it would seem that
16 See Steven L. Willborn et al., Employment Law: Cases and Materials 82 (1993); John F.
Buckley and Ronald M. Green, 2006 State by State Guide to Human Resources Law 5-46
(2006).
17 See Buckley and Green at 5-59.
18 421 N.E.2d 876, 878 (Ill. 1981).
19 700 S.W.2d 859, 871 (Mo. Ct. App. 1985).
20 But see Mark A. Rothstein and Meghan K. Talbott, Job Security and Income Replacement
for Individuals in Quarantine: The Need for Legislation, 10 J. Health Care L. & Pol’y 239
(2007) (suggesting that a claim for wrongful discharge in violation of public policy may not
be successful because “[n]o court has ever held that it violates public policy to discharge an
individual because he or she missed work due to quarantine.”)

---

CRS-5
an even stronger argument for a public policy exception to the at-will rule of
employment could be articulated. In such case, the government would appear to be
identifying a policy that would benefit the public good. However, even if the
government recommended isolation or quarantine rather than mandated such actions,
a strong argument for a public policy exception to the at-will rule would still seem
possible. In either case, the government would seem to be establishing a policy in
furtherance of the public’s best interests.
The Family and Medical Leave Act
The Family and Medical Leave Act21 (“FMLA”) guarantees eligible employees
12 workweeks of unpaid leave during any 12-month period for one or more of the
following reasons:
! because of the birth of a son or daughter of the employee and in
order to care for such son or daughter;
! because of the placement of a son or daughter with the employee for
adoption or foster care;
! in order to care for a spouse or a son, daughter, or parent of the
employee, if such spouse, son, daughter, or parent has a serious
health condition; and
! because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.22
The FMLA defines an “eligible employee” as one who has been employed for at least
12 months by the employer from whom leave is requested, and who has been
employed for at least 1,250 hours of service with such employer during the previous
12-month period.23 The FMLA applies only to employers engaged in commerce (or
in an industry affecting commerce) that have at least 50 employees who are employed
21 29 U.S.C. §§ 2601-2654. For additional discussion of the Family and Medical Leave Act,
see CRS Report RS22090, The Family and Medical Leave Act: Background and U.S.
Supreme Court Cases, by Jon O. Shimabukuro.
22 29 U.S.C. § 2612(a)(1).
23 29 U.S.C. § 2611(2). The term “eligible employee” does not include most federal
employees. Federal employees are covered generally under the Federal Employees Family
Friendly Leave Act (“FEFFLA”). See 5 U.S.C. § 6307(d) (permitting the use of sick leave
to care for a family member having an illness or injury, and to make arrangements for or to
attend the funeral of a family member). The U.S. Office of Personnel Management has
issued a document that contemplates telework, alternative work arrangements, and excused
absences during a pandemic. See U.S. Office of Personnel Management, Human Capital
Planning for Pandemic Influenza (2006) [http://www.govexec.com/pdfs/HandbookOPM2nd
July72006.pdf].

---

CRS-6
for each working day during each of 20 or more calendar workweeks in the current
or preceding calendar year.24
If there was a spread of a pandemic influenza virus, the FMLA would seem to
provide infected employees and employees who care for certain infected relatives
with the opportunity to be absent from the workplace.25 The FMLA defines a
“serious health condition” to mean “an illness, injury, impairment, or physical or
mental condition” that involves either “inpatient care in a hospital, hospice, or
residential medical care facility; or ... continuing treatment by a health care
provider.”26 An employee who was affected by a pandemic influenza virus may be
found to have a serious health condition. If the FMLA’s eligibility requirements
were met, such an employee would likely be granted leave under the statute.27
In addition, because the FMLA grants leave to an employee to care for a spouse,
child, or parent with a serious health condition, an employee could be granted leave
to care for a relative who was affected by a pandemic influenza virus if the employee
met the statute’s eligibility requirements. While on leave, the employee with the
serious health condition or the employee caring for a spouse, child, or parent with a
serious health condition could be isolated or quarantined without the fear of
termination for at least 12 workweeks.28
In contrast, an employee who was not infected by a pandemic influenza virus
or who was not responsible for the care of a spouse, child, or parent infected by such
a virus would not be protected by the FMLA. If such an employee sought isolation
or quarantine to avoid exposure and was absent from the workplace, the FMLA
would not prohibit the employer from terminating the employee.
At least six states, recognizing that the lack of statutory protection for
employees in a situation where isolation or quarantine may be necessary, have
24 29 U.S.C. § 2611(4)(I). See also 29 U.S.C. §2611(2)(B)(ii). (Employers who employ 50
or more employees within a 75-mile radius of an employee’s worksite are subject to the
FMLA even if they may have fewer than 50 employees at a single worksite.)
25 See Centers for Disease Control and Prevention (CDC), Interim Pre-pandemic Planning
Guidance: Community Strategy of Pandemic Influenza Mitigation in the United States —
Early, Targeted, Layered Use of Nonpharmaceutical Interventions at 51 (Feb. 2007),
[http://www.pandemicflu.gov/plan/community/mitigation.html] (explaining that absenteeism
for child minding could last as long as 12 weeks for a severe pandemic).
26 29 U.S.C. § 2611(11). See also U.S. Dept. of Labor, Application of Wage-Hour Laws
During a Pandemic Flu Outbreak (Jan. 2007) [http://www.dol.gov/esa/regs/compliance/whd
/whdfs64.pdf].
27 It is possible that an employee could be affected by a pandemic influenza virus and not
develop a serious health condition. In such case, the employee would not be eligible for
leave under the Family and Medical Leave Act.
28 Although the Family and Medical Leave Act allows for at least 12 workweeks of leave,
it does not guarantee the payment of wages during such leave. Under section 102(d)(2)(B)
of the act, 29 U.S.C. § 2612(d)(2)(B), an employer may require the employee to substitute
paid vacation or sick leave for the leave granted under the act. If such a substitution is not
made, the employee is likely to be granted unpaid leave.

---

CRS-7
enacted legislation that explicitly prohibits the termination of an employee who is
subject to isolation or quarantine. In Delaware, Iowa, Kansas, Maryland, Minnesota,
and New Mexico, an employer is prohibited from terminating an employee who is
under an order of isolation or quarantine, or has been directed to enter isolation or
quarantine.29 Under Minnesota law, an employee who has been terminated or
otherwise penalized for being in isolation or quarantine may bring a civil action for
reinstatement or for the recovery of lost wages or benefits.30
Two additional states have enacted legislation that addresses the treatment of
employees who are subject to quarantine or isolation. Under New Jersey law, an
affected employee must be reinstated following the quarantine or isolation.31 Under
Maine law, an employer is required to grant leave to an employee who is subject to
quarantine or isolation.32 The leave granted by the employer may be paid or unpaid.33
Although federal law does not protect from termination employees who may be
absent from the workplace because of isolation or quarantine, there are examples of
employee protections that are arguably analogous.34 The FMLA, for example, does
grant leave to an eligible employee who has a serious health condition or who
29 Del. Code Ann. tit. 20, § 3136(6)(d); Iowa Code § 139A.13A; Kan. Stat. Ann. § 65-129d;
Md. Code Ann., Health-Gen. § 18-906; Minn. Stat. § 144.4196; N.M. Stat. Ann. § 12-10A-
16.
30 Minn. Stat. § 144.4196.
31 N.J. Rev. Stat. § 26:13-16.
32 Me. Rev. Stat. Ann. tit. 26, § 875.
33 Although the availability of wage or income replacement because of quarantine or
isolation is beyond the scope of this report, it should be noted that some commentators have
indicated that existing wage or income replacement programs, such as unemployment and
workers compensation, would probably not provide compensation for most employees
affected by quarantine or isolation. See, e.g., Nan D. Hunter, “Public-Private” Health Law:
Multiple Directions in Public Health, 10 J. Health Care L. & Pol’y 89 (2007). Replacement
wages, however, were reportedly paid during at least one quarantine. During the 1916 polio
epidemic, quarantined families in the village of Glen Cove, New York received replacement
wages. See Guenter B. Risse, Revolt Against Quarantine: Community Responses to the
1916 Polio Epidemic, Oyster Bay, New York, Transactions & Stud. of the College of
Physicians of Philadelphia, Mar. 1992, at 34 (“Garbage cans were distributed free of charge,
and quarantined families received replacement wages to compensate for loss of income”).
Disaster unemployment assistance pursuant to the Stafford Act may also be a possibility if
it is determined that the act is applicable to an influenza pandemic. See CRS Report
RL33579, The Public Health and Medical Response to Disasters: Federal Authority and
Funding, by Sarah A. Lister; CRS Report RS22022, Disaster Unemployment Assistance
(DUA), by Julie M. Whittaker (discussing the availability of disaster unemployment benefits
pursuant to a disaster declaration under the Stafford Act).
34 During the SARS (Severe Acute Respiratory Syndrome) epidemic, Canadian laws and
regulations were amended to provide for special employment insurance coverage for health
care workers who were unable to work because of SARS and to provide for unpaid leave if
an individual was unable to work due to a SARS-related event, such as being under
individual medical investigation. See Institute for Bioethics, Health Policy and Law,
Quarantine and Isolation: Lessons Learned from SARS at 58-59 (November 2003).

---

CRS-8
provides care to a spouse, child, or parent with a serious health condition. Moreover,
an expansion of the FMLA to allow for at least eight weeks of paid leave because of
a serious health condition or to care for a spouse, child, or parent with such a
condition has been proposed.35 The availability of paid leave would likely minimize
concerns about lost wages during an influenza pandemic.36
The Uniformed Services Employment and Reemployment Rights Act
(USERRA) provides another example of employee protection.37 USERRA requires
the reemployment of an employee who has been absent from a position of
employment because of service in the uniformed services. USERRA and the FMLA
illustrate Congress’s awareness of events that may necessitate an employee’s absence
from the workplace.
The Americans with Disabilities Act (ADA)
Overview of the ADA Definition and Employment Provisions
Definition of Disability.
The Americans with Disabilities Act38 (ADA) has
often been described as the most sweeping nondiscrimination legislation since the
Civil Rights Act of 1964. It provides broad nondiscrimination protection in
employment, public services, public accommodation and services operated by private
entities, transportation, and telecommunications for individuals with disabilities. As
stated in the act, the ADA’s purpose is “to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals with
disabilities.”39
The starting point for an analysis of rights provided by the ADA is whether an
individual is an individual with a disability. The term “disability,” with respect to an
individual, is defined as “(A) a physical or mental impairment that substantially
35 See Family Leave Insurance Act of 2007, S. 1681, 110th Cong. (2007). For additional
information on leave benefits available pursuant to federal law, see CRS Report RL34088,
Leave Benefits in the United States, by Linda Levine.
36 Some states are exploring the availability of paid leave as part of their state disability
insurance programs. In 2002, legislation that extends disability insurance benefits to
individuals who are unable to perform their work because they are “caring for a seriously
ill child, parent, spouse, or domestic partner” was enacted in California. See Cal. Unemp.
Ins. Code §§ 3300-3306. Under the so-called Paid Family Leave Insurance Program, an
individual who meets the program’s requirements is eligible for benefits equal to one-
seventh of the individual’s weekly benefit amount on any day in which he or she is unable
to perform the individual’s regular or customary work. For additional information on the
Paid Family Leave Insurance Program, see [http://www.edd.ca.gov/direp/pflind.asp].
37 38 U.S.C. §§ 4301-4333.
38 42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA, see CRS Report
98-921, The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues,
by Nancy Lee Jones.
39 42 U.S.C. §12101(b)(1).

---

CRS-9
limits one or more of the major life activities of such individual; (B) a record of such
an impairment; or (C) being regarded as having such an impairment.”40 The EEOC
has defined “substantially limits” as meaning “(I) Unable to perform a major life
activity that the average person in the general population can perform; or (ii)
Significantly restricted as to the condition, manner or duration under which an
individual can perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general population can
perform that same major life activity.”41 In order to determine if an individual is
substantially limited in a major life activity, the EEOC found that the following
factors should be considered: “the nature and severity of the impairment; the
duration or expected duration of the impairment; and the permanent or long-term
impact, or the expected permanent or long-term impact of or resulting from the
impairment.”42 In a question-and-answer publication on the ADA, the Department
of Justice and the EEOC observed that
[t]he first part of the definition makes clear that the ADA applies to persons who
have impairments and that these must substantially limit major life activities such
as seeing, hearing, speaking, walking, breathing, performing manual tasks,
learning, caring for oneself, and working. An individual with epilepsy, paralysis,
HIV infection, AIDS, a substantial hearing or visual impairment, mental
retardation, or a specific learning disability is covered, but an individual with a
minor, nonchronic condition of short duration, such as a sprain, broken limb, or
the flu, generally would not be covered.43
The definition of disability has been the subject of numerous cases brought under the
ADA, including major Supreme Court decisions.44
Employment Discrimination. Title I of the ADA prohibits employment
discrimination, and specifically provides that no covered entity shall discriminate
against a qualified individual with a disability because of the disability in regard to
40 42 U.S.C. § 12102(2). Legislation has been introduced in both the House and Senate to
amend the ADA. The bills, H.R. 3195, 110th Cong., and S. 1881, 110th Cong., would amend
the definition of disability to broaden the scope from that determined by Supreme Court
decisions. For a detailed discussion of the ADA’s definition of disability, see CRS Report
RL33304, The Americans with Disabilities Act (ADA): The Definition of Disability, by
Nancy Lee Jones.
41 29 C.F.R. §1630.2(j)(1).
42 29 C.F.R. §1630.2(j)(2).
43 Equal Employment Opportunity Commission and U.S. Department of Justice, Civil Rights
Division, “Americans with Disabilities Act: Questions and Answers,” [http://www.usdoj.
gov/crt/ada/qandaeng.htm]. See, also, 29 C.F.R. Part 1630, App. §1630.2(j), which states:
“temporary, non-chronic impairments of short duration, with little or no long term or
permanent impact, are usually not disabilities. Such impairments may include, but are not
limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza.”
44 See, e.g., Sutton v. United Airlines, 527 U.S. 471 (1999), where the Court held that the
determination of whether an individual is an individual with a disability should be made
with reference to measures that might mitigate the individual’s impairment, such as
medications or eyeglasses.

---

CRS-10
job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment.45 The term discrimination is defined in part as “excluding or otherwise
denying equal jobs or benefits to a qualified individual because of the known
disability of an individual with whom the qualified individual is known to have a
relationship or association.”46 The term employer is defined as a person engaged in
an industry affecting commerce who has 15 or more employees.47
For an ADA employment-related issue, if the threshold issues of meeting the
definition of an individual with a disability and involving an employer employing
over 15 individuals are met, the next step is to determine whether the individual is
a qualified individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the job. Title I defines a
“qualified individual with a disability.” Such an individual is “an individual with a
disability who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such person holds or desires.”48 The
EEOC has stated that a function may be essential because (1) the position exists to
perform the duty, (2) there are a limited number of employees available who could
perform the function, or (3) the function is highly specialized.49
The ADA requires the provision of reasonable accommodation unless the
accommodation would pose an undue hardship on the operation of the business.50
“Reasonable accommodation” is defined in the ADA as including making existing
facilities readily accessible to and usable by individuals with disabilities, and job
restructuring, part-time or modified work schedules, reassignment to vacant
positions, acquisition or modification of equipment or devices, adjustment of
examinations or training materials or policies, provision of qualified readers or
interpreters, and other similar accommodations.51 The Equal Employment
45 42 U.S.C. §12112(a).
46 42 U.S.C. §12112(b)(4).
47 42 U.S.C. §12111(5). This parallels the coverage provided in the Civil Rights Act of
1964. The Supreme Court in Arbaugh v. Y. & H. Corp., 546 U.S. 500, 126 S.Ct. 1235, 163
L.Ed.2d 1097 (2006), held that the 15-employee limitation in title VII of the Civil Rights
Act, 42 U.S.C. §2000e(b), was not jurisdictional, but rather was related to the substantive
adequacy of a claim. Thus, if the defense that the employer employs fewer than 15
employees is not raised in a timely manner, a court is not obligated to dismiss the case.
Since the ADA’s 15-employee limitation language parallels that of Title VII, it is likely that
a court would interpret the ADA’s requirement in the same manner.
48 42 U.S.C. §1211(8).
49 29 C.F.R. §1630.2(n)(2).
50 42 U.S.C. §12112(b)(5)(A).
51 42 U.S.C. § 12111(9).

---

CRS-11
Opportunity Commission (EEOC) has interpreted reasonable accommodation as
including work at home52 and the use of paid or unpaid leave.53
“Undue hardship” is defined as “an action requiring significant difficulty or
expense.”54 Factors to be considered in determining whether an action would create
an undue hardship include the nature and cost of the accommodation, the overall
financial resources of the facility, the overall financial resources of the covered
entity, and the type of operation or operations of the covered entity.55 The EEOC has
provided detailed guidance on reasonable accommodation and undue hardship,
which, in part, discusses the use of paid or unpaid leave as a form of reasonable
accommodation.56
Application of the ADA
Overview.
Would an individual who is isolated, quarantined, or told to use
a “snow day” be discriminated against in violation of the ADA if he or she was
subject to adverse employment consequences, such as termination of employment?
The first step in the analysis of this issue is to examine which of these circumstances
— isolation, quarantine, or snow days — is applicable to the individual. Then it
must be determined if the person is an individual with a disability. If the individual
is determined to be an individual with a disability, the final step is to determine
whether the person is a qualified individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the job.
Definition of Disability and Isolation. Isolation, as noted previously,
separates individuals who are sick from those who are well. Generally, individuals
with long-term contagious diseases would be considered individuals with
disabilities.57 In Bragdon v. Abbott,58 the Supreme Court held that HIV infection was
a physical impairment that was a substantial limitation on the major life activity of
reproduction. It might be argued that an individual who is infected with a pandemic
influenza virus and who manifests symptoms would have a substantial limitation on
a major life activity such as breathing. Therefore, it could be argued that an
52 See [http://www.eeoc.gov/facts/telework.html].
53 EEOC, “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act,” [http://www.eeoc.gov/policy/docs/
accommodation.html].
54 42 U.S.C. §12111(10).
55 Id.
56 EEOC, “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act,” [http://www.eeoc.gov/policy/docs/accommodation.
html]. This guidance also discusses the relationship between the ADA and the Family
Medical Leave Act (FMLA).
57 For a discussion of the ADA’s coverage of contagious disease generally, see CRS Report
RS22219, The Americans with Disabilities Act (ADA): Coverage of Contagious Diseases,
by Nancy Lee Jones.
58 524 U.S. 624 (1998).

---

CRS-12
individual who is isolated because of this illness would be covered under the ADA.
However, determination of coverage under the ADA is dependent on an
individualized determination; the mere fact of having a particular condition does not
necessarily make an individual an individual with a disability. If an individual’s
symptoms were mild or short-term, the condition might not be considered to be a
substantial limitation on a major life activity. For example, in Toyota Motor
Manufacturing v. Williams,59 the Supreme Court found that an individual who could
brush her teeth, wash her face, do laundry, and fix breakfast was not substantially
limited in a major life activity, even though her condition caused her to occasionally
seek help dressing and to reduce the amount of time she played with her children,
gardened, and drove long distances. In addition, the EEOC has indicated that the
duration or expected duration of the impairment is a factor to be considered in
determining whether an individual is substantially limited in a major life activity.60
In its discussion regarding the ADA and individuals with cancer, the EEOC indicated
that, when determining whether cancer is a disability under the ADA, duration of the
condition is a factor to be used in determining if the condition substantially limits a
major life activity. The EEOC stated that “where the condition lasts long enough
(i.e., for more than several months) and substantially limits a major life activity, such
as interacting with others, sleeping, or eating, it is a disability within the meaning of
the ADA.”61 Similarly, in the question-and-answer publication by the EEOC and the
Department of Justice quoted earlier, “flu” was specifically listed as the kind of
“minor, nonchronic condition of short duration” that would not be covered.62
Thus, an argument could be made that an individual who is isolated due to
infection with a pandemic influenza virus would not be considered to be an
individual with a disability. However, this conclusion is dependent on an
individualized determination, and may turn on whether an individual had any long-
lasting residual effects from the infection. If an individual who was isolated due to
infection with a pandemic influenza virus was determined to be an individual with
a disability, the next step in determining whether there would be ADA coverage
would be to determine whether the individual is a qualified individual with a
disability who, with or without reasonable accommodation, can perform the essential
functions of the job. Since an individual in isolation would most likely be too ill to
59 534 U.S. 184 (2002).
60 29 C.F.R. §1630.2(j)(2).
61 EEOC, “Questions and Answers about Cancer in the Workplace and the Americans with
Disabilities Act (ADA),” [http://www.eeoc.gov/facts/cancer.html].
62 It should be noted that this reference to “flu” would not necessarily include pandemic
influenza, which may not be a “minor, nonchronic condition of short duration.” Of
particular importance concerning whether this interpretation could be distinguished would
be the extent to which an individual may have long-lasting residual effects from infection
with a pandemic influenza virus. For a chart listing differences between seasonal influenza
and pandemic influenza, see [http://www.pandemicflu.gov/season_or_pandemic.html].

---

CRS-13
work, the major question would concern the use of leave, paid or unpaid, as a
reasonable accommodation.63
Definition of Disability, Employment Discrimination, and
Quarantine. Quarantine separates individuals who have been exposed to an
infection but are not yet ill from others who have not been exposed to the
transmissible infection.64 Since the individual who is quarantined is not yet sick and
may never become sick, the first prong of the definition of disability, having a
physical or mental impairment that substantially limits one or more of the major life
activities of such individual, is not applicable. The second prong of the definition,
having a record of a disability, would also not be applicable since the individual has
not been ill. The third prong protects individuals who are “regarded as” having a
disability. The EEOC defines regarded as having a disability as meaning an
individual who
(1) Has a physical or mental impairment that does not substantially limit major
life activities but is treated by a covered entity as constituting such limitation; (2)
Has a physical or mental impairment that substantially limits major life activities
only as a result of the attitudes of others toward such impairment; or (3) Has
none of the impairments defined ... but is treated by a covered entity as having
a substantially limiting impairment.65
Of these three subsets of the category of being regarded as having a disability,
the situation of a quarantined individual appears to fit the last one — having none of
the impairments but being treated as having a substantially limiting impairment. It
might be argued that an employer might treat a quarantined individual as significantly
restricted as to the condition, manner, or duration under which he or she can perform
a particular major life activity.66
The next hurdle regarding ADA coverage is whether the individual is a qualified
individual with a disability who, with or without reasonable accommodation, can
perform the essential functions of the job. Can an individual who is quarantined
perform the essential functions of a job? The answer to that question depends in
large part on what the job is. If the job is serving food at a restaurant, the answer is
clearly no. However, an individual might be able to perform a job on a computer by
teleworking. The EEOC has interpreted the reasonable accommodation as including
63 The following section regarding quarantine discusses the application of reasonable
accommodation requirements in more detail.
64 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation
Plan 209 (May 2006).
65 29 C.F.R. §1630.2(l).
66 If the individual was quarantined due to a relationship or association with an individual
who was ill with pandemic influenza, the ADA’s prohibition against excluding or otherwise
denying equal jobs or benefits because of the known disability of an individual with whom
the qualified individual was known to have a relationship or association might be applicable.
42 U.S.C. §12112(b)(4). However, this assumes that the individual ill with pandemic
influenza is an individual with a disability, which would not necessarily be the case.

---

CRS-14
work at home67 and the use of paid or unpaid leave.68 However, several cases have
found that physical attendance at a job is an essential function of a job relying on
employer’s arguments concerning the need for supervision and teamwork.69
Another potential issue would arise if a quarantined individual who is
considered an individual with a disability because he or she is “regarded as” having
a disability asks to be able to work from home as a reasonable accommodation.
There is considerable controversy over whether an individual who is regarded as
having a disability is entitled to reasonable accommodations.70
Definition of Disability and Snow Days. “Snow days,” a type of social
distancing, is the recommendation or mandate by authorities that individuals and
families limit social contacts by remaining within their households.71 Since there
would not even be the connection to possible infection that there might be in a
quarantine situation, an argument that individuals taking snow days would be
individuals with disabilities would be unlikely to be successful. Similarly, it is
unlikely that an argument that individuals taking snow days are regarded as having
a disability would be successful. However, it is possible to argue that individuals
taking snow days may be unimpaired, but are treated as having a substantially
limiting impairment. It could be argued that an employer might treat a such an
individual as significantly restricted as to the condition, manner, or duration under
which he or she can perform a particular major life activity. If this argument were
successful, the next step would be to determine whether the individual is a qualified
individual with a disability who, with or without reasonable accommodation, can
perform the essential functions of the job. The analysis of these issues would be the
same as discussed previously regarding individuals who are quarantined.
Summary of ADA Application. The preceding discussion illustrates the
complexity of applying the ADA’s nondiscrimination mandates to employment issues
arising during an influenza pandemic. Although it is possible that the ADA might be
found to apply in some circumstances, since ADA coverage is to be individually
determined, generally, it is unlikely that the ADA would provide protection to
individuals who are denied salary or terminated from employment because of an
influenza pandemic. This is due, in large part, to the difficulty of meeting the
67 See [http://www.eeoc.gov/facts/telework.html].
68 EEOC, “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act,” [http://www.eeoc.gov/policy/docs/accommodation.
html].
69 See, e.g., Maya v. Avaya Communications, Inc. 357 F.3d 1114 (10th Cir. 2004). For a
discussion of this case, see Patrick Rogers, “Challenges in Meeting the Disability
Qualification Under the ADA: The Tenth Circuit’s Analysis in Mason v. Avaya
Communications, Inc.,” 82 Denv. U.L.Rev. 539 (2005).
70 For a discussion of the cases on this issue, see Cynthia A. Crain, “The Struggle for
Reasonable Accommodation for ‘Regarded As’ Disabled Individuals,” 74 U.Cin.L.Rev. 167
(2005).
71 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation
Plan 209 (May 2006).

---

CRS-15
definition of individual with a disability.72 As one commentator has observed: “The
ADA could apply if an employee was fired because of a serious injury or illness
resulting from an emergency if the general statutory criteria were met. Given the
limited scope of the coverage of the ADA, however, based on the recent Supreme
Court interpretations, the utility of the ADA in this regard would be severely
limited.”73
72 A similar conclusion about the inapplicability of ADA was reached in a discussion of
Severe Acute Respiratory Syndrome (SARS). See Institute for Bioethics, Health Policy and
Law, Quarantine and Isolation: Lessons Learned from SARS, at 123 (November 2003). See
also Mark A. Rothstein, and Meghan K. Talbott, “Encouraging Compliance with
Quarantine: A Proposal to Provide Job Security and Income Replacement,” 97 AM. J. OF
PUBLIC HEALTH S49, S50 (April 2007).
73 Nan D. Hunter, “Public-Private Health Law: Multiple Directions in Public Health,” 10 J.
HEALTH CARE L. & POL’Y 89 (2007).

---