Quarantine and Isolation: Selected Legal
Issues Relating to Employment
Nancy Lee Jones
Legislative Attorney
Jon O. Shimabukuro
Legislative Attorney
May 11, 2009
Congressional Research Service
7-5700
www.crs.gov
RL33609
CRS Report for Congress
P
repared for Members and Committees of Congress
Quarantine and Isolation: Selected Legal Issues Relating to Employment
Summary
Recent human cases of infection with a novel influenza A (H1N1) virus have been identified both
internationally and in the United States. There has been human to human transmission and the
new virus has the potential to become pandemic. The emergence of this virus, in addition to other
potential pandemic threats such as the avian influenza A (H5N1) virus, has 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 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).
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Quarantine and Isolation: Selected Legal Issues Relating to Employment
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 1
Wrongful Discharge in Violation of Public Policy ....................................................................... 3
The Family and Medical Leave Act ............................................................................................. 4
The Americans with Disabilities Act (ADA)................................................................................ 7
Overview of the ADA Definition and Employment Provisions............................................... 7
Definition of Disability ................................................................................................... 7
Employment Discrimination............................................................................................ 9
Application of the ADA ...................................................................................................... 11
Overview ...................................................................................................................... 11
Definition of Disability and Isolation ............................................................................ 11
Definition of Disability, Employment Discrimination, and Quarantine........................... 12
Definition of Disability and Snow Days ........................................................................ 13
Summary of ADA Application....................................................................................... 14
Contacts
Author Contact Information ...................................................................................................... 14
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Quarantine and Isolation: Selected Legal Issues Relating to Employment
Introduction
Recent human cases of infection with a novel influenza A (H1N1) virus have been identified both
internationally and in the United States. There has been human to human transmission and the
new virus has the potential to become pandemic.1 The emergence of this virus, in addition to
other potential pandemic threats such as the avian influenza A (H5N1) virus, has given rise to
issues relating to the use of quarantine and isolation.2 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.3
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
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, depending on the severity of the pandemic, the use of other infection control measures
may be critical. The uses of quarantine and isolation, as well as social distancing and “snow
1 For information on the latest number of cases, medical information, and U.S. Government actions, see
http://www.cdc.gov/swineflu/ and http://www.dhs.gov/xprepresp/programs/swine-flu.shtm. See also CRS
Report R40554, The 2009 Influenza A(H1N1) “Swine Flu” Outbreak: An Overview, by Sarah A. Lister and C. Stephen
Redhead.
2 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. For an overview of
the legal issues relating to the 2009 Influenza A(H1N1) see CRS Report R40560, The 2009 Influenza A(H1N1)
Outbreak: Selected Legal Issues, coordinated by Kathleen S. Swendiman and Nancy Lee Jones.
3 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.
4 Homeland Security Council, National Strategy for Pandemic Influenza 1-2 (GPO November 2005). For a detailed
discussion of pandemic influenza, preparedness, and response, see CRS Report RL33145, Pandemic Influenza:
Domestic Preparedness Efforts, by Sarah A. Lister.
5 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation Plan 107 (GPO May 2006).
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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 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
The National Governors Association Center for Best Practices (NGA Center) conducted nine
regional pandemic preparedness workshops during 2007 and 2008 to “examine state pandemic
preparedness, particularly in non-health-related areas such as continuity of government,
maintenance of essential services, and coordination with the private sector.” A report analyzing
the information gained during these workshops identified areas in which new or improved
6 Id. at 72-73, 107-109.
7 Although the precise efficacity of these measures is not known, a 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 planning for an influenza
pandemic. See American Public Health Association, APHA’s Prescription for Pandemic Flu (February 2007)
http://www.apha.org/NR/rdonlyres/D5017DB9-F400-4399-A656-939C4C8DF259/0/FLUpolicycomplete.pdf.
13 See CDC, supra note 12 at 19.
14 Id.
15 Id. at 51-52.
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policies and procedures are necessary to improve pandemic preparedness. One of these areas was
workforce policies. The NGA Center concluded
Every sector examined in this report will be affected by the availability of workers during a
pandemic. In general, states and the private sector should develop and test policies affecting
the willingness and ability of personnel to perform their duties, whether in traditional or
alternative settings. Potential strategies and or guidance addressing telecommuting,
alternative schedules, or modified operating hours for retail establishments and Internet or
distance-learning programs for school children would be particularly useful. During a
pandemic, almost everyone will be susceptible to the illness. A central disease control
strategy will be keeping sick people away from others to minimize the spread of infection.
Employers should examine their human resource policies and, if needed, create new policies
that would allow sick workers to stay at home during a pandemic. When possible, states and
private sector employers should collaboratively develop policies that effectively balance the
need of some workers to care for sick (or healthy) family members for extended periods of
time with the requirements government and private sector continuity of operations plans.16
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);
• 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.17
16 National Governors Association Center for Best Practices, Pandemic Preparedness in the States: An Assessment of
Progress and Opportunity, (September 2008).
17 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).
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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.18
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.19
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.”20 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.21
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 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 Act22 (“FMLA”) guarantees eligible employees 12 workweeks of
unpaid leave during any 12-month period for one or more of the following reasons:
18 See Buckley and Green at 5-59.
19 421 N.E.2d 876, 878 (Ill. 1981).
20 700 S.W.2d 859, 871 (Mo. Ct. App. 1985).
21 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.”)
22 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.
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• 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.23
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.24 The FMLA applies
only to employers engaged in commerce (or in an industry affecting commerce) that have at least
50 employees who are employed for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year.25
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.26 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.”27 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.28
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
23 29 U.S.C. § 2612(a)(1).
24 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.opm.gov/pandemic/opm-
pandemic_allissuances.pdf. For additional information on human resources management flexibilities that may be
utilized by federal executive branch agencies during emergency situations, see CRS Report RS22264, Federal
Employees: Human Resources Management Flexibilities in Emergency Situations, by Barbara L. Schwemle.
25 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.)
26 See CDC, supra note 12 (explaining that absenteeism for child minding could last as long as 12 weeks for a severe
pandemic).
27 29 U.S.C. § 2611(11).
28 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.
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spouse, child, or parent with a serious health condition could be isolated or quarantined without
the fear of termination for at least 12 workweeks.29
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 seven states, recognizing that the lack of statutory protection for employees in a situation
where isolation or quarantine may be necessary, have enacted legislation that explicitly prohibits
the termination of an employee who is subject to isolation or quarantine. In Delaware, Iowa,
Kansas, Maryland, Minnesota, New Mexico, and Utah, 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.30 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.31
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.32 Under Maine law, an employer is required to grant leave
to an employee who is subject to quarantine or isolation.33 The leave granted by the employer
may be paid or unpaid.34
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.35 The FMLA, for example, does grant leave to an eligible employee who has
29 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.
30 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; Utah Code Ann. § 26-6b-3.3.
31 Minn. Stat. § 144.4196.
32 N.J. Rev. Stat. § 26:13-16.
33 Me. Rev. Stat. Ann. tit. 26, § 875.
34 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 and Alison M. Shelton (discussing the availability of
disaster unemployment benefits pursuant to a disaster declaration under the Stafford Act).
35 During the SARS (Severe Acute Respiratory Syndrome) epidemic, Canadian laws and regulations were amended to
(continued...)
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a serious health condition or who 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.36 The availability of paid leave would likely minimize concerns about lost
wages during an influenza pandemic.37
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides
another example of employee protection.38 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 Act39 (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.”40
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 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
(...continued)
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).
36 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.
37 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. Similar legislation has been
enacted in New Jersey. See A. 873, 213th Leg., Reg. Sess. (N.J. 2008).
38 38 U.S.C. §§ 4301-4333.
39 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.
40 42 U.S.C. §12101(b)(1).
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impairment (as described in paragraph(3)).”41 The ADA was amended by the ADA Amendments
Act of 2008, P.L. 110-325, to expand the interpretation of the definition of disability from that of
several Supreme Court decisions.42 Although the statutory language is essentially the same as it
was in the original ADA, P.L. 110-325 contains new rules of construction regarding the definition
of disability, which provide that:
• the definition of disability shall be construed in favor of broad coverage to the
maximum extent permitted by the terms of the act;
• the term “substantially limits” shall be interpreted consistently with the findings
and purposes of the ADA Amendments Act;
• an impairment that substantially limits one major life activity need not limit other
major life activities to be considered a disability;
• an impairment that is episodic or in remission is a disability if it would have
substantially limited a major life activity when active;
• the determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures, except that the ameliorative effects of ordinary eyeglasses or contact
lenses shall be considered.43
The findings of the ADA Amendments Act include statements indicating that the Supreme Court
decisions in Sutton v. United Airlines and Toyota Motor Manufacturing v. Williams, as well as
lower court cases, have narrowed and limited the ADA from what was intended by Congress. P.L.
110-325 specifically states that the current EEOC regulations defining the term “substantially
limits” as “significantly restricted” are “inconsistent with congressional intent, by expressing too
high a standard.” The codified findings in the original ADA are also amended to delete the
finding that “43,000,000 Americans have one or more physical or mental disabilities....” This
finding was used in Sutton to support limiting the reach of the definition of disability.
The ADA Amendments Act states that the purposes of the legislation are to carry out the ADA’s
objectives of the elimination of discrimination and the provision of “‘clear, strong, consistent,
enforceable standards addressing discrimination’ by reinstating a broad scope of protection
available under the ADA.” P.L. 110-325 rejected the Supreme Court’s holdings that mitigating
measures are to be used in making a determination of whether an impairment substantially limits
a major life activity as well as holdings defining the “substantially limits” requirements. The
substantially limits requirements of Toyota as well as the EEOC regulations defining substantially
limits as “significantly restricted” are specifically rejected in the new law.
The EEOC had promulgated regulations and issued other publications on the definition of
disability contained in the ADA as originally enacted. The appendix to the regulations stated:
“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
41 42 U.S.C. §12102(2) as amended by P.L. 110-325, §4(a).
42 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999);
Kirkingburg v. Albertson’s Inc., 527 U.S. 555 (1999); Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002).
For a more detailed discussion of P.L. 110-325 see CRS Report RL34691, The ADA Amendments Act: P.L. 110-325, by
Nancy Lee Jones.
43 Low vision devices are not included in the ordinary eyeglasses and contact lens exception.
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limbs, sprained joints, concussions, appendicitis, and influenza.”44 Similarly, in a question-and-
answer publication on the ADA, the Department of Justice and the EEOC observed that “an
individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or
the flu, generally would not be covered” under the definition of disability.45 There was some
question about whether this interpretation would apply to pandemic influenza since pandemic
influenza 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.46 However, the EEOC and DOJ interpretations of the definition of disability do not take
into consideration P.L. 110-325. The EEOC will be promulgating new regulations to reflect the
statutory amendments and, although the statute did not address pandemic influenza, the broad
reach of the new definition, particularly the requirement that the definition be interpreted broadly,
may necessitate a change in the regulatory interpretation.
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 on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.47 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.”48 The term
employer is defined as a person engaged in an industry affecting commerce who has 15 or more
employees.49
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.”50 The EEOC has stated that a
function may be essential because (1) the position exists to perform the duty, (2) there are a
44 29 C.F.R. Part 1630, App. §1630.2(j).
45 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.
46 For a chart listing differences between seasonal influenza and pandemic influenza, see http://www.pandemicflu.gov/
season_or_pandemic.html.
47 42 U.S.C. §12112(a).
48 42 U.S.C. §12112(b)(4).
49 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.
50 42 U.S.C. §1211(8).
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limited number of employees available who could perform the function, or (3) the function is
highly specialized.51
It is a defense to a charge of discrimination that an alleged application of a qualification standard
has been shown to be job-related and consistent with business necessity.52 A qualification
standard may include a requirement that an individual no pose a direct threat to the health or
safety of other individuals.53
The ADA requires the provision of reasonable accommodation unless the accommodation would
pose an undue hardship on the operation of the business.54 “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.55 The Equal Employment Opportunity Commission (EEOC)
has interpreted reasonable accommodation as including work at home56 and the use of paid or
unpaid leave.57
“Undue hardship” is defined as “an action requiring significant difficulty or expense.”58 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.59 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.60
The ADA also limits an employer’s ability to make disability-related inquiries or to require
medical examinations.61 Prior to an offer of employment, all disability-related inquiries and
medical examinations are prohibited. After a conditional job offer but prior to the
commencement of employment, an employer may make disability-related inquiries and conduct
medical examinations as long as this is done for all entering employees in the same job category.
After an employee begins work, an employer may make disability-related inquiries and conduct
51 29 C.F.R. §1630.2(n)(2).
52 42 U.S.C. §12113.
53 42 U.S.C. §12113(b).
54 42 U.S.C. §12112(b)(5)(A).
55 42 U.S.C. § 12111(9).
56 See http://www.eeoc.gov/facts/telework.html.
57 EEOC, “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act,” http://www.eeoc.gov/policy/docs/accommodation.html. Since the ADA Amendments Act largely
concerned the definition of disability, it is likely that the EEOC’s interpretations of parts of the ADA would not be
significantly affected by P.L. 110-325.
58 42 U.S.C. §12111(10).
59 Id.
60 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).
61 42 U.S.C. §12112(d).
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medical examinations only if they are job related and consistent with business necessity. Any
medical information an employer obtains as a result of these actions must be treated as a
confidential medical record.
Application of the ADA
Overview
The first question to be discussed is how the ADA’s requirements regarding disability-related
inquiries might effect employers who are planning for possible absences due to potential
influenza absenteeism. The EEOC has issued guidance regarding how an employer may ask
employees about factors, including chronic medical conditions that may put an individual at
higher risk from influenza, that may cause them to miss work during a pandemic.62 Generally, the
EEOC has found that such inquiries are permitted if the employer asks broad questions that are
not limited to disability-related inquiries.
Second, 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.63 In Bragdon v. Abbott,64 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 individual who is isolated because of this illness would be
covered under the ADA.
However, although the ADA Amendments Act of 2008 broadened the definition of disability so
that arguments against coverage that could have been made prior to the statutory change are no
longer relevant, the enactment of P.L. 110-325 does not mean that there is no ambiguity about
coverage. There will still be a requirement for making the determination of whether a disability is
covered under the definition. The Statement of Managers to Accompany S. 3406, the bill which
became P.L. 110-325, specifically states the following:
62 EEOC, “ADA-Compliant Employer Preparedness for the H1N1 Flu Virus,” http://www.eeoc.gov/facts/
h1n1_flu.html.
63 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.
64 524 U.S. 624 (1998).
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By retaining the essential elements of the definition of disability including the key term
“substantially limits” we reaffirm that not every individual with a physical or mental
impairment is covered by the first prong of the definition of disability in the ADA. An
impairment that does not substantially limit a major life activity is not a disability under this
prong. That will not change after enactment of the ADA Amendments Act, nor will the
necessity of making this determination on an individual basis. What will change is the
standard required for making this determination. This bill lowers the standard for
determining whether an impairment constitutes a disability and reaffirms the intent of
Congress that the definition of disability in the ADA is to be interpreted broadly and
inclusively.65
Therefore, since 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, as
interpreted by the ADA Amendments Act. Therefore, 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 argument is dependent on an
individualized determination, and may turn on the severity of the particular infection and whether
an individual had any long-lasting residual effects from the infection. In addition, the enactment
of P.L. 110-325, with its requirement that the definition of disability be construed broadly,66
makes it more likely that a disability will fall within the purview of the ADA.
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 work, the major question
would concern the use of leave, paid or unpaid, as a reasonable accommodation.67
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.68 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 and would appear
to be the most applicable in this situation. P.L. 110-325 amended the ADA definition of “regarded
as” providing that an individual meets the requirement of being “regarded as” having a disability
“if the individual establishes that he or she has been subjected to an action prohibited under this
Act because of an actual or perceived physical or mental impairment whether or not the
65 Statement of Managers to Accompany S. 3406, 153 CONG. REC. S. 8344, 8345 (Sept. 11, 2008).
66 42 U.S.C. §12101(3), as amended by P.L. 110-325, §4.
67 The following section regarding quarantine discusses the application of reasonable accommodation requirements in
more detail.
68 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation Plan 209 (May 2006).
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impairment limits or is perceived to limit a major life activity.”69 The “regarded as” prong does
not apply to transitory and minor impairment. A transitory impairment is defined as an
impairment with an actual or expected duration of six months or less.70 In addition, the ADA
Amendments Act provides that reasonable accommodations do not have to be provided to an
individual who is covered under the “regarded as” prong.71
Assuming that an individual who is quarantined would be covered under the regarded as prong of
the definition of disability, 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 reasonable
accommodation as including work at home72 and the use of paid or unpaid leave.73 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.74 These
interpretations regarding reasonable accommodation are unlikely to apply since under the ADA
Amendments Act of 2008, an individual covered under the “regarded as” prong does not have to
be provided reasonable accommodation.
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.75 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 mental
or physical impairment. 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.
69 42 U.S.C. §12101(3), amended by P.L. 110-325, section 4.
70 Id.
71 42 U.S.C. §12201(h), as amended by P.L. 110-325, section 6. Under previous law, the circuits were split on whether
there is a duty to accommodate a “regarded as” plaintiff. See e.g., D’Angelo v.ConAgra Foods, Inc., 422 F.3d 1220
(11th Cir. 2005)(duty to accommodate); Kaplan v. City of North Las Vegas, 323 F.3d 1226 (9th Cir. 2003), cert. denied,
540 U.S. 1049 (2003)(no duty to accommodate).
72 See http://www.eeoc.gov/facts/telework.html.
73 EEOC, “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act,” http://www.eeoc.gov/policy/docs/accommodation.html.
74 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).
75 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation Plan 209 (May 2006).
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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. ADA coverage is to be
individually determined so it is not possible to make a definitive determination of coverage.
Given the recent amendments to the ADA, it has become more likely that individuals with
disabilities would be covered.76 However, even if an individual is determined to be an individual
with a disability who has been discriminated against, the requirement for reasonable
accommodation varies depending on whether the determination of disability is made on the first
two prongs of the definition or on the third. If an individual is found to be an individual with a
physical or mental impairment that substantially limits one of more major life activities or has a
record of such an impairment, reasonable accommodations may be required. In the context of
pandemic influenza, this may mean that telework or other accommodations may be available.
However, the third prong of the definition of disability, being “regarded as” having a disability,
does not require the provision of reasonable accommodation.77 As a practical matter, this would
mean that the provision of telework for individuals who are quarantined or subject to a “snow
day” would not be required under the ADA, even if an individual were to meet the requirements
of the third prong of the definition.
Author Contact Information
Nancy Lee Jones
Jon O. Shimabukuro
Legislative Attorney
Legislative Attorney
njones@crs.loc.gov, 7-6976
jshimabukuro@crs.loc.gov, 7-7990
76 For a discussion of the reach of the ADA prior to these amendments see Institute for Bioethics, Health Policy and
Law, Quarantine and Isolation: Lessons Learned from SARS, at 123 (November 2003) (discussing the analogous
situation presented by Severe Acute Respiratory Syndrome (SARS)). 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); Nan D. Hunter, “Public-Private Health Law: Multiple Directions in
Public Health,” 10 J. HEALTH CARE L. & POL’Y 89 (2007). Generally, these articles concluded that the ADA’s reach
was limited due to the Supreme Court’s narrow interpretation of the definition of disability.
77 42 U.S.C. §12201(h), as amended by P.L. 110-325, section 6.
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