When facing the possibility of dealing with pandemic influenza and its impact on the workplace, many legal and logistical questions come to mind. The following is a list of commonly asked questions which may give you guidance when confronted with pandemic flu workplace issues. The answers provided in this document provide you with a general approach to dealing with generic issues on this topic. Any specific situation that involves peripheral issues beyond what is contemplated in these answers should be referred to legal counsel for a final opinion. Also remember that any employment related action must comply with federal laws prohibiting discrimination in the workplace on the basis of race, sex, age, color, religion, national origin, disability or veteran status. As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.
Q. Can leave be granted under the Family Medical Leave Act (FMLA) for pandemic flu related reasons?
A. This is a very complex question that depends on a number of factors. FMLA may be granted if the illness results in complications that create a serious heath condition. On the other hand, an employee is not protected under FMLA if they elect to stay home from work in order to avoid getting pandemic influenza. Moreover, an employee is not protected under FMLA who elects to stay home to care for a sick child unless the child develops a serious health condition. What's more, employees are not covered under FMLA if they elect to stay home to care for children who have been dismissed from school.
Q. Should an employer request a doctor's release to return to work or to be symptom-free for a specified number of days before returning to work?
A. While it may be a good idea to get a doctor's release, consider that health care providers may be over run if there is a pandemic. During a pandemic health crises, an employer would be allowed to require a doctor's note, medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work. Such a requirement generally does not run afoul of the Americans with Disabilities Act (ADA). An employer may require these actions where it has a reasonable belief, based on objective evidence that the employee's present medical condition would:
Employers are required, however, to notify employees in advance if the employer will require a fitness-for-duty certification to return to work.
Q. Will workers qualify for unemployment if a flu pandemic hits and their employer has to shut down operations?
A. In general, if a worker is laid off due to a shut down caused by an influenza pandemic, the worker would be eligible for unemployment insurance if the worker meets all other program requirements. For example, the worker must be able to work and be available for suitable work. Each state's agency responsible for administering unemployment insurance will make the final determination on eligibility.
Q. May an employer mandate employees stay home if they or members of their family are known or suspected to have pandemic influenza or were exposed to someone with pandemic influenza? A. Yes. If an employer believes that an individual would pose a direct threat in the workplace based on the most recent and reputable medical information he or she may be mandated to stay out of the workplace.
Q. During a flu pandemic, can a healthy employee refuse to come to work, travel, or perform other job duties because of a belief that by doing so, he or she would be at an increased risk of catching the flu?
A. Generally speaking, employees are not protected for simply walking off the job. An employer can impose disciplinary action for refusing to work. However, employees do have the right to refuse to do a job if they believe in good faith that by performing it they are exposed to imminent danger.
Q. Once a pandemic begins, may employers change work hours and schedules or provide alternative work arrangements like telework to minimize contact between employees?
A. Yes. Once a pandemic begins changing work schedules or job duties is usually within your discretion as long as such changes are nondiscriminatory and are consistent with any applicable collective bargaining agreement or employment contract. Plans for using alternative schedules should be communicated to your employees in your contingency plans.
Q. If an employer establishes a child care center at the workplace for children who have been dismissed from school; will it violate the CDC's community social distancing strategies for children? A. Employers should be very careful about establishing child care centers for employees that have children because this could undermine CDC's child social distancing recommendations and contribute to the spread of pandemic influenza. Bringing children into the workplace could increase the likelihood of the virus entering the workplace and infecting employees.
Q. Can employers close their place of business to employees or customers known to have contracted or to have been exposed to pandemic influenza?
A. Yes. An employer may close it facilities to employees or customers known to have contracted or have been exposed to pandemic influenza.