Workplace Questions - FAQs:

Do you have a sample policy statement for businesses who want to let folks know to stay home if they are sick?

You may want to consider using the type of message below.

In general, if you are sick with the flu, you should avoid contact with other people as much as possible to keep from spreading your illness. Persons who are infected influenza may be ill for a week or longer. With seasonal flu, people may be contagious from one day before they develop symptoms to up to 7 days after they get sick. Children, especially younger children, might potentially be contagious for longer periods.

With the exception of making trips to get medical care or for other necessities, you should stay home and keep away from others as much as possible. This includes avoiding travel and not going to work or school, for at least 24 hours after your fever is gone (Your fever should be gone without the use of fever-reducing medicine when returning to work.)

Always cover your coughs and sneezes with a tissue to avoid spreading droplets on others.

May employers ask employees if they have children or other family members for whom they may need to take care of in the event of a pandemic (for example, if schools were closed)? May they be asked if they have someone else who can take care of these family members? May this information be shared with supervisors and managers?

Yes, you may ask if employees may need to be absent to care for others in the event of a pandemic and you may share the information with supervisors and managers. Although there are no Federal privacy laws that are applicable in these circumstances, there may be state laws governing privacy of which you should be aware. It is recommended that prior to any pandemic flu outbreak, you consult with legal counsel and human resource specialists to develop a plan of action specific to your workplace.

In addition, the Family and Medical Leave Act (FMLA) makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. Therefore, employers cannot discourage a covered and eligible employee from taking FMLA leave if the employee is needed to care for a qualifying family member (a spouse, son, daughter, or parent) with a serious health condition or when the employee is unable to work because of the employee’s own serious health condition. The FMLA protections would not apply to leave needed, for example, for an employee to attend to his healthy children whose day care provider was temporarily closed.

Finally, employers are reminded that under Title VII of the Civil Rights Act of 1964, it would be discriminatory to only ask the above questions to its employees of a specific sex (e.g., females) and take adverse actions against those employees based on the answers received. (For more information regarding sex-based discrimination, see the Equal Employment Opportunity Commission’s website.)

Note: As an overall matter, employers should be guided in their relationship with their employees by federal, state, and local employment law, and by the company-specific application of these laws as reflected in employee handbooks, manuals, and contracts (including bargaining agreements).

May employers ask employees if they may have a higher risk of infection, for example, a compromised immune system?

Generally, an employer may not ask employees disability-related questions (i.e., a question likely to elicit information about a disability), unless the questions are job-related and consistent with business necessity. A question about whether an employee has a compromised immune system may be considered disability-related under the Americans with Disabilities Act¹ (ADA) (see example 3 under question #2 in the U.S. Equal Employment Opportunity Commission (EEOC) Fact Sheet, Questions & Answers About Cancer in the Workplace and the Americans with Disabilities Act (ADA)).

A disability-related question is job-related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence that an employee may be unable to perform the essential functions of a job or may pose a direct threat (i.e., a significant risk of substantial harm to the employee or others in the workplace) due to a medical condition. (For a full explanation of this standard, see the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act.)

May the employees be asked questions about family members, or other potential exposures to pandemic influenza?

Asking an employee if he or she has a family member who has been exposed to pandemic influenza probably would not be considered a prohibited disability-related question (i.e., a question likely to elicit information about a disability) under the ADA. As a best practice, employers should ask these types of questions in accordance with a company-wide, pandemic-related policy or guidance.

May this information be shared with supervisors and managers?

Employee medical information is confidential under the ADA. Employers may not share it with others within the organization, subject to limited exceptions. Two relevant exceptions are:

Employers may disclose medical information to supervisors and managers where necessary to provide a requested accommodation or to meet an employee’s work restrictions, and
Employers may disclose medical information to first aid and safety personnel if an employee would need emergency treatment or assistance because of a medical condition.

(See the EEOC’s publication entitled, The ADA: A Primer for Small Business, for additional information.)

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¹The EEOC enforces Title I of the ADA. The ADA’s provisions in regards to disability-related inquiries, medical examinations, and confidentiality apply to all applicants and employees of covered employers, regardless of whether those individuals have disabilities, as defined by the ADA. By contrast, other ADA requirements apply only if an applicant or an employee is an individual with a disability under the ADA.

It cannot be definitively established in advance, however, whether a future pandemic influenza would rise to the level of a disability under the ADA. Therefore, this answer provides guidance for employers that would comport with the ADA even if a future pandemic illness was found to be an ADA disability.

For the purpose of estimating pandemic absenteeism levels, may employers obtain medical information about employees’ general health status to identify those employees who may be at a greater risk of contracting pandemic influenza?

No. As a general rule, the Americans with Disabilities Act (ADA) prohibits “disability-related inquiries” of employees, and questions about “medical problems” are “disability-related” because they are likely to disclose who has a disability. If the goal is to estimate absenteeism before a pandemic occurs, then employers should not ask disability-related questions. Rather, employers should ask whether employees are likely to be absent during a public health crisis, such as a pandemic, for a range of reasons, such as child care responsibilities, school closures, closure of public transportation, or medical reasons. If the question is posed as, “Do any of these concerns apply to you? Yes or No,” then the question as a whole is not disability-related. This simple “Yes or No” answer will get the employer information about who is likely to be absent in the event of a public health crisis, without asking about their medical problems.

If an influenza pandemic were to occur, and become serious according to the CDC or local, state or other federal public health officials, ADA-covered employers may have grounds to conclude that some employees will face a “direct threat” (or a significant risk of substantial harm) if they catch pandemic influenza. In this circumstance, ADA-covered employers may make disability-related inquiries, i.e., ask employees if they have a compromised immune system, or another medical problem that puts them at high risk of serious illness related to pandemic influenza.

May an employer access employees’ medical information already in its possession for the purpose of pre-pandemic planning?

The Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules only covers certain health care providers, health care clearinghouses, and health plans. The Rule generally does not apply to the conduct of employers and, thus should not affect employer access to or use of medical information in its possession. Even if an employer is a sponsor of a health plan or a provider of health care, employment records held in its role as an employer are not protected by the Privacy Rule. The requirements of the Rule should be considered if an issue arises in regard to the conduct of employer-sponsored health plans.

The Americans with Disabilities Act (ADA) requires employers to keep medical information about employees confidential. Specifically, the ADA requires that employers keep employee medical information in separate files apart from personnel records and prohibits disclosure (which would include accessing the information). An employer may share otherwise confidential medical information with supervisors and managers where necessary to provide a requested accommodation or to meet an employee’s work restrictions, or with first aid and safety personnel if an employee would need emergency treatment or assistance because of a medical condition. (See the U.S. Equal Employment Opportunity Commission’s publication entitled, The ADA: A Primer for Small Business, for additional information.)

Before a flu outbreak, may employers survey employees to identify who may need to stay home, telework, or work an alternate schedule to care for children because they are dismissed from school or child care, consistent with the Community Mitigation Guidance from HHS/CDC?

Yes, prior to an outbreak, employers may inquire which employees may need to stay home, telework or work an alternate schedule to care for children in the event students are dismissed from school and child care centers are closed.

Please keep in mind that asking employees questions, prior to a pandemic, about their health conditions or related absenteeism may raise issues under the Americans with Disabilities Act¹ (ADA).

Although there are no Federal privacy laws that are applicable in these circumstances, there may be state laws governing privacy of which you should be aware. It is recommended that prior to any pandemic influenza outbreak, you consult with legal counsel and human resource specialists to develop a plan of action specific to your workplace.

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May and employer ask for employees' personal contact information, such as phone numbers, email addresses, or contacts where they may be if caring for family members? Can that information be shared with with other employees?

Yes, you may ask for phone numbers and email addresses consistent with any non-discriminatory workplace policy you may have in place. Although there are no Federal laws governing this area, there may be state laws governing privacy of which you should be aware.

Keep in mind that you may not be familiar with all of your individual employees’ personal circumstances and that on occasion, sharing private contact information or other personal information among employees may be objectionable for any number of legitimate reasons. In certain instances, under federal equal employment opportunity law, employers may be liable for workplace harassment that occurs at the hands of fellow employees.

We strongly encourage you to limit the information collected to only that which is necessary, and limit the individuals with whom the information is shared, unless you have the consent of your employees.

As a manager or supervisor, may I tell an employee’s direct supervisor at my company or organization if I know for a fact that the employee has pandemic influenza?

The Americans with Disabilities Act (ADA) allows employers to share employees’ otherwise confidential medical information in limited circumstances. One of these exceptions allows an employer to disclose an employee’s medical information to her supervisor(s) and/or manager(s) where necessary to meet an employee’s work restrictions.

In the event of an influenza pandemic, an employer may alert a supervisor of an employee’s pandemic illness so that the supervisor can implement necessary work restrictions for public health and safety reasons. (See the U.S. Equal Employment Opportunity Commission’s publication, The ADA: A Primer for Small Business, pp. 10-11, for additional information.)

When communicating with employees before, during, or after a pandemic, are there restrictions on the type of information that can be shared?

Providing information to your employees on the status of the pandemic, as well as your pandemic policies and plans, is encouraged. This type of knowledge will likely have a positive impact on your workforce and business. Note that under the Americans with Disabilities Act¹ (ADA), employers are required to keep employees’ medical information (e.g., information about the nature of an employee’s illness) confidential (i.e., maintained on a separate form and in a separate medical file).

Business information regarding the status of an employee may be circulated to sustain operations so long as that information does not disclose confidential medical information about the employee. For example, a business could communicate, for the purpose of business continuity, that an employee is not currently at work and that the employee may be out office for several weeks.

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During an influenza pandemic, do employers have to provide new accommodations for a person with a disability (e.g., special work hours) due to lack of public transportation or other similar circumstances? What are the organization’s obligations if it can no longer provide an accommodation (e.g., the sign language interpreter is home sick and no others are available)?

If a particular accommodation cannot be provided (e.g., no sign language interpreters are available), the Americans with Disabilities Act (ADA) would require you to provide an available alternative accommodation if it does not pose an undue hardship. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

May employers treat essential/critical employees different than other employees such as providing transportation to and from work or giving them antivirals when there is a limited supply?

Yes, as long as you are following company policy and applying it in a nondiscriminatory manner. Remember you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.

Can an employer terminate or reduce employees’ health benefits?

Employers offer health benefits on a voluntary basis. Federal law does not require employers to offer health coverage to their employees nor does it prevent employers from cutting or reducing benefits in many instances. Employees and their families may have a right to continuation coverage under COBRA if the plan still exists and may have a contractual right to coverage if, for example, benefits are required under a collective bargaining agreement. In addition, a plan cannot deny eligibility or continued eligibility based on health status.

Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to the continuation of group health insurance coverage during any period of FMLA leave under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. Employees may contact the Department of Labor’s Wage and Hour Division (1-866-487-7243) for information on the FMLA.

Employees may contact one of EBSA’s benefits advisors at 1-866-444-EBSA (3272) or online at: http://www.dol.gov/ebsa/contactEBSA/consumerassistance.html

A company is temporarily shut down and did not pay employees’ insurance premiums. Can the employees pay the premium to continue coverage?

Employees should first contact their employer to determine the employer’s intent to pay the premium. Employees may also wish to contact the insurance company to determine how long the payment has been in arrears, if the insurance company has provided a grace period for late payment, and how long the employer has been given to make the payment. Employees can also contact their state insurance commissioner regarding any rights they may have under state law to pay premiums directly to the insurance company or convert the group health coverage to an individual policy.

If premiums are in arrears or coverage has been cancelled as a result of the employer’s failure to make the premium payment, employees may contact one of the Employee Benefit Security Administration’s (EBSA) benefits advisors at 1-866-444-EBSA (3272) or contact EBSA by email at askebsa@dol.gov.

Can employees get money out of their retirement plan if they need financial assistance?

Many plans provide for loans to plan participants. However, federal law does not require plans to make loans. The Summary Plan Description (SPD) or other plan documents should explain the terms of any plan loan program. Employees will only be able to obtain a loan if the plan has a loan program.

The plan may also permit withdrawals in the event of hardship, disability or termination of employment. Federal law, however, does not require that plans provide for such withdrawals. The SPD or other plan documents should provide information concerning any rights with respect to such withdrawals. Withdrawing money from the plan may have tax or other adverse consequences.

If an employee wishes to get money out of their pension plan in the form of a loan or a hardship withdrawal, he or she should contact the plan administrator, plan sponsor, or plan official. Employees may also contact one of the Employee Benefit Security Administration’s (EBSA) benefits advisors at 1-866-444-EBSA (3272), or or online at: http://www.dol.gov/ebsa/contactEBSA/consumerassistance.html.

Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?

Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave.

If the leave qualifies as Family and Medical Leave Act protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.

Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave.

What legal responsibility do employers have to allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?

Covered employers must abide by the Family and Medical Leave Act (FMLA) as well as any applicable state FMLA laws. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.

There is currently no federal law covering employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents that have been dismissed from school or child care. However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families. Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

Can an employee stay home under Family and Medical Leave Act (FMLA) leave to avoid getting the flu?

The Family and Medical Leave Act (FMLA) protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA. Employers should encourage employees that are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances. (See Community Strategy for Pandemic Influenza Mitigation.)

The U. S. Department of Labor and other federal agencies are currently reviewing federal statutes and regulations that may affect employers and employees during the unique circumstance where the U.S. experiences a severe influenza pandemic. Decisions have not yet been made as to whether any changes are needed. Answers to questions such as this one are based on current laws and regulations.

What types of policy options do employers have for preventing abuse of leave?

Both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act affect the provision of leave.

Under the FMLA, employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. In addition, employers may require employees to provide:

medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic re-certification;
second or third medical opinions (at the employer's expense);
periodic reports during FMLA leave regarding the employee's status and intent to return to work; and
consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.)

The FMLA also allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. (See the U.S. Department of Labor, Wage and Hour Division for additional information on the FMLA or call 1-866-487-9243 if you have questions.)

Under the Americans with Disabilities Act¹, qualified individuals with disabilities may be entitled to unscheduled leave, unpaid leave, or modifications to the employer sick leave policies as “reasonable accommodations.” These are modifications or adjustments to jobs, work environments, or workplace polices that enable qualified employees with disabilities to perform the essential functions (i.e., fundamental duties) of their jobs and have equal opportunities to receive the benefits available to employees without disabilities. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

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If an employer lays off employees during a severe pandemic, will the employees be eligible for unemployment insurance? Will the employer’s unemployment taxes go up?

Only the state agency responsible for administering the unemployment insurance (UI) programs in the state can make eligibility determinations. In general, if a worker is laid off due to a shut down caused by an influenza pandemic, the worker would be eligible for UI benefits if the worker meets all other program requirements. For example, the worker must be able to work and available for suitable work. The state will determine whether an employer’s account will be charged for benefits paid and in some cases, it may cause the employer’s tax rate to go up. The state agency will advise employers regarding any changes to their tax rates.

More information is available at: ows.doleta.gov/unemploy/aboutui.aspor by calling the U.S. Department of Labor’s Employment Training Administrationat 1-866-4-USA-DOL (1-866-487-2365).

What can I do to make sure my workspace is free of flu and other viruses?

Influenza virus can survive for 24-48 hours or longer on nonporous (hard) surfaces and 8-12 hours on porous surfaces such as paper or cloth and can be transmitted to persons’ hands from these surfaces. Flu viruses may be spread when a person touches a hard surface (such as a desk or doorknob) or an object (such as a keyboard or pen) where the virus has landed and then touches his or her eyes, nose, or mouth. Routine cleaning of surfaces will help stop the virus from spreading in this way.

Routinely clean surfaces and items that are frequently touched by different people, such as doorknobs, faucets, and telephones. Wipe these surfaces with a household disinfectant, following the directions on the product label. Additional disinfection of these surfaces beyond routine cleaning is not recommended due to the hazards associated with chemical use.

For information on specific disinfectants, please refer to:

Antimicrobial Products Registered for Use Against Influenza A Virus on Hard Surfaces http://www.epa.gov/oppad001/influenza-a-product-list.pdf

Antimicrobial Products Registered for Use Against the H1N1 Flu and Other Influenza A Viruses on Hard Surfaces http://www.epa.gov/oppad001/influenza-disinfectants.html

Some employees may not be able to come to work during a severe pandemic because they have to take care of sick family members. May an employer lay them off?

It depends. If an employee is covered and eligible under the Family and Medical Leave Act (FMLA) and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states may have similar family leave laws. In those situations, covered employers must comply with the federal or state provision that provides the greater benefit to their employees. (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

In lieu of laying off employees in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.

What if the business has a union contract, does it have to follow the contract’s provisions?

Yes. Remember that an employer must observe any employment benefit program or plan (including that provided through a collective bargaining agreement) that provides greater family or medical leave rights to employees than the rights established by the FMLA. Conversely, the rights established by the FMLA may not be diminished by any employment benefit program or plan. In addition, discharging, laying off, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

May employers fire employees (in non-health care sectors) if they refuse to follow the company’s rules to control infection and increase hygienic practices during a pandemic?

You should consider other options before turning to termination, but any terminations should be consistent with company policy and must be nondiscriminatory.

(See the Department of Labor’s Occupational Safety and Health Administration or call 1-800-321-OSHA on workplace safety and health issues.)

Note: As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.

What notices must be given before an employee is terminated or laid off during a pandemic?

In certain cases, employers must give the workers advanced notice of mass layoffs or plant closure. The Worker Adjustment and Retraining Notification Act (WARN Act) provides specific information on advance notice, employer responsibility and workers’ rights during mass layoffs or plant closure.

Some states may have requirements for employee notification prior to termination or lay-off.

During a severe pandemic, may employers mandate employees stay home if they or members of their family are known or suspected to have the flu or been exposed to someone with the flu?

The Americans with Disabilities Act permits employers to require that employees stay home if the particular employees are known or suspected to have the flu or have been exposed to the flu.

What if an employee has asked the Occupational Safety and Health Administration (OSHA) to investigate because they believe it is unsafe during a disease outbreak and the employer takes action against them for refusing to come to work or perform these duties?

Employees have the right to file a complaint and request OSHA to conduct an inspection if they believe serious workplace hazards exist in the workplace.

Section 11(c) of the Occupational Safety and Health Act (OSH Act) prohibits employers from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act, including the right to file a complaint.

Workers are not entitled to walk off the job because of potential unsafe conditions at the workplace. When there is not a real danger of death or serious injury, a worker would ordinarily be expected to bring a hazardous condition to the attention of the employer so that it could be corrected, or to call OSHA. However, under limited circumstances, the OSH Act does protect a worker who refuses to perform assigned tasks. Employees may refuse an assignment only if:

(1) they reasonably believe that doing the work would put them in serious and immediate danger;

(2) they have asked their employer to fix the hazard;

(3) there is no time to call OSHA; and

(4) there is no other way to do the job safely.

May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes, the CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to the seasonal influenza virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

May an employer rescind a job offer made to an applicant based on the results of a post-offer medical examination, if it reveals that the applicant has a medical condition that puts him/her at increased risk of complications from the flu?

No, unless the applicant would pose a direct threat within the meaning of the ADA. A finding of “direct threat” must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities. The finding must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job, after considering, among other things, the imminence of the risk; the severity of the harm; and the availability of reasonable accommodations to reduce the risk. Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat level.

Example: The same international shipping employer offers a financial position at its U.S. headquarters to Steve. This position does not involve regular contact with flight crew or travel to the affected WHO region. Steve’s post-offer medical examination (which is the same examination given to all U.S. headquarters employees) reveals that Steve has a compromised immune system due to recent cancer treatments. Given the fact that the position does not involve regular contact with flight crew or travel, and that the influenza virus has not spread to North America, Steve would not face a significant risk of contracting the virus at work and does not pose a “direct threat” to himself or others in this position. Under the ADA, it would be discriminatory to rescind Steve’s job offer based on the possibility of an influenza pandemic.

May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No, an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense).

Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

During a flu outbreak, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?

Yes, an employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.

If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.

Example A: An accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all accountants. In accordance with the ADA, the employer provides the accountant with a notebook computer that has a screen-reader installed.

All employees with disabilities whose responsibilities include management during a pandemic must receive reasonable accommodations necessitated by pandemic conditions, unless undue hardship is established.

Example B: A manager in a marketing firm has a hearing disability. A sign language interpreter facilitates her communication with other employees at the office during meetings and trainings. Before the pandemic, the employer decided to provide video phone equipment and video relay software for her at home to use for emergency business consultations. (Video relay services allow deaf and hearing impaired individuals to communicate by telephone through a sign language interpreter by placing a video relay call.) During an influenza pandemic, this manager also is part of the employer’s emergency response team. When she works from home during the pandemic, she uses the video relay services to participate in daily management and staff conference calls necessary to keep the firm operational.

Are there equal opportunity resources available that explains policies about working with disabled people and accommodation?

Employers are encouraged to consult the following EEOC publications for further information about the Americans with Disabilities Act.

Disability-Related Inquiries and Medical Examinations:
- Disability-Related Inquiries & Medical Examinations of Employees Under the ADA (2000) at http://www.eeoc.gov/policy/docs/guidance-inquiries.html;
- Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures (2001) at http://www.eeoc.gov/facts/evacuation.html;
- Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations (1995) at http://www.eeoc.gov/policy/docs/preemp.html.
Reasonable Accommodation and Undue Hardship: Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (as revised 2002) at http://www.eeoc.gov/policy/docs/accommodation.html.
Telework as a Reasonable Accommodation: Work at Home/Telework as a Reasonable Accommodation (2003) at http://www.eeoc.gov/facts/telework.html.

Once a pandemic begins, may employers mandate alternative work schedules (e.g., flex-time, staggered shifts) or alternative work arrangements (e.g., telework) to promote social distancing?

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. Employing alternative work arrangements to achieve social distancing among employees is within your rights and is in the interest of your employees.

However, prior to pandemic, employers should be very careful not to make employment related decisions based on perceptions of an employee’s availability during a pandemic, unless the decision is consistent with company policy and applied in a nondiscriminatory manner. Remember you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.

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?

Depending on the severity of the pandemic, the Centers for Disease Control and Prevention (CDC) may recommend closing child care, schools, colleges, and universities and recommend other child social distancing measures. Employers should be very cautious 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. Also, bringing children into the workplace may increase the likelihood of the virus entering the workplace and infecting employees. Employers should consider other alternatives such as staggered shifts or teleworking as a first step to enabling families to remain productive at work while caring for one another.

Could employers be held liable if employees are injured while teleworking?

If employees are injured while teleworking, they are entitled to file a workers’ compensation claim. Adjudication of that claim is based on the relevant State’s statute. It is beneficial to have a telecommuting agreement with employees that addresses the home inspection and health and safety issues and clearly states your responsibility in these matters. A training program and accompanying materials should provide information on how to create a safe workplace in the home. Note that the Department of Labor’s Occupational Safety and Health Administration does not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees.

What kinds of information should be conveyed to employees to prepare them for the issues that are likely to be of concern to them should a pandemic occur? What is the best way to communicate this information?

Employees need to know what a pandemic influenza is, how it might impact them at work and at home, and how your workplace pandemic influenza plan will reduce exposure at work.

Communicating good hygiene and infection control practices will help keep your workforce healthy. You should share materials that educate employees on the fundamentals of pandemic influenza (e.g., symptoms of influenza, modes of transmission); personal and family response strategies (e.g., hand hygiene, coughing/sneezing etiquette, contingency plans); and community and workplace mitigation strategies (e.g., social distancing, provision of infection control supplies). Tools from the Centers for Disease Control and Prevention (CDC) to aid your communication, as well as Occupational Safety and Health Administration’s workplace safety and health guidance are available on Flu.gov. Remind employees of the resources available to them, e.g., Employee Assistance Programs, vendor provided benefit counseling, etc.

Training employees on the workplace precautions in your pandemic influenza plan and how/when to implement them during a pandemic will ensure that everyone in your workplace is prepared. Proactive communication will also help gain employee trust, and prevent employee fear, anxiety, rumors and misinformation. Ensure that your communications are culturally and linguistically appropriate. There are various platforms of communication, and the best ones for your employees will depend upon your business. Hotlines, dedicated Web sites, brochures, posters, and telephone trees are just a few ways to communicate pandemic status and actions to employees in a consistent and timely fashion.

Also, as part of your pre-pandemic planning, you may want to consult with your bargaining unit representatives if you have a labor union.

What changes should be made, if any, to employee travel and what should be done to ensure employees living abroad are prepared for a pandemic?

Pandemics have a global effect. To ensure the safety of your off-site and international employees, it is essential that you monitor pandemic activity and understand unique travel restrictions, closures, and quarantine policies in areas where your staff travel and operate. Unessential travel to areas with high transmission rates should be discontinued during a pandemic. Quarantines and border closures need to be evaluated before making decisions about all business-related travel. The starting point in ensuring the safety of employees abroad is to always know where they are and be able to communicate with them to convey health and safety information.

The ability to assist Americans abroad may be limited by restrictions on local and international movement imposed for public health reasons by the U.S. or foreign governments. Communicating to employees abroad about how they can prepare for a pandemic, including information about stocking food, water and medical supplies and understanding their options for accessing medical care, is essential. It is also important to examine the insurance provisions for employees abroad, as well as arrangements for repatriating them.

Should employers encourage employees to obtain seasonal flu vaccines and offer them in the workplace?

Yes -- although a seasonal flu vaccine won't protect against a newly emergent pandemic influenza, flu shots can help individuals stay healthy. Providing employees with educational information on the benefits of flu vaccines and posting this information in the workplace will also serve as a reminder to employees to get their shots. Employers should keep track of annual influenza vaccinations for employees to determine the overall health status of their workforce. Under the Americans with Disabilities Act¹ (ADA) employers are required to keep employees’ medical information confidential (i.e., maintained on a separate form and in a separate medical file).

Employers that wish to offer flu vaccinations in the workplace may do so as an employee health program under the ADA. Employee health programs must be offered on a voluntary basis.

What measures can employers adopt during flu season to keep employees healthy?

The CDC recommends a yearly flu vaccine as the first and most important step in protecting against flu viruses. The two main strategies recommended to businesses this flu season are

host a flu vaccination clinic at the workplace, and
promote flu vaccination in the community.

The following link provides more information on these strategies: http://www.cdc.gov/flu/pdf/business/Recommended_Strategies.pdf

Employers can take additional steps by sharing information with employees to encourage flu vaccination. Consider posting a CDC flyer in the workplace (see link above), or copy and place in mailboxes or include in pay statements or newsletters. Also, employers should educate their workers about good hygiene and infection control practices and advise workers to stay home when sick.

Refer to the CDC’s recommendations for helpful guidance (http://www.cdc.gov/flu/business/). In addition, the Department of Labor's Occupational Safety and Health Administration has provided workplace safety and health guidance that will help employers protect workers during flu season. (See also: “What kinds of information should be conveyed to employees to prepare them for the issues that are likely to be of concern to them during flu season?"

Are employers required to provide employees with infection control supplies and personal protective equipment (PPE) to prevent or slow the transmission of influenza?

Workplace safety law requires employers to provide a workplace free from hazards likely to cause death or physical harm. The Department of Labor’s Occupation Safety and Health Administration has provided detailed guidance on how to protect workers during flu season (Guidance on Preparing Workplaces for an Influenza Pandemic).

Employees who perform certain types of healthcare tasks for patients who may have the flu, may be at a higher risk of exposure to the seasonal flu virus at work. Precautions include using a combination of safe work practices and personal protective equipment (PPE) to reduce exposures to workers who are at high risk. Where the employer has evaluated the work site and determined that PPE is required to be worn by employees, it is the employer’s responsibility to assure that PPE is provided at that site. For guidance on selecting PPE, employers can consult the OSHA’s guidance referenced above.

There are various levels of control that can be used to protect employees who are at a higher risk of exposure including, engineering controls, work practices, administrative controls, and PPE. Some examples of these controls include: modifying patient intake, triage, and other service areas to increase space between workers, coworkers, and patients (e.g., installing sneeze guards or partitions), promoting personal hygiene measures, and use of gloves or other PPE. Employers will need to use a combination of these controls its protect employees. Signage in common areas around the workplace encouraging and explaining how to use these controls may increase awareness and good hygiene behavior.

Employers should also educate their workers about good hygiene and infection control practices.

May employers require employees to supply their own “safety equipment” (e.g., surgical masks or respirators, latex gloves, etc)?

Where the employer has evaluated the work and determined that personal protective equipment (PPE) is required to be worn by employees, it is the employer’s responsibility to assure that PPE is provided at that site.

Many OSHA standards, including the bloodborne pathogens standard, currently require employers to provide PPE at no cost to their employees. For those standards that do not specify payment, OSHA's Employer Payment for PPE, Final Rule (published November 15, 2007) requires, with very limited exceptions, payment for PPE.

Employers should also note that under the Americans with Disabilities Act, a qualified individual with a disability may be entitled to have certain safety equipment provided by his or her employer as a reasonable accommodation, absent an undue hardship. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?

Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status. Be sure also to consult state and local laws.

In addition, you should consider that if your workforce is represented by a labor union and the collective bargaining agreement covers sick leave policies, you may be limited in either the manner in which you change the policy or the manner of the changes themselves because the collective bargaining agreement would be controlling. In a workplace without a collective bargaining agreement, employees may have a contractual right to any accrued sick leave, but not future leave.

Your sick leave policy also has to follow the requirements of the Family and Medical Leave Act (FMLA)(if your employees are covered by the Act), and it needs to be consistent with federal workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA). (See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA. See the U.S. Equal Employment Opportunity Commission or call 1-800-669-4000 if you have questions on ADA.)

An employee was laid off and did not receive his/her last paycheck. What remedies are available?

Employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment.

If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, the employee should contact the U.S. Department of Labor's (DOL) Wage and Hour Division or the state labor department. DOL also has mechanisms in place for the recovery of back wages.

If individuals volunteer to a private, not-for-profit organization, are they entitled to compensation?

Individuals who volunteer their services in an emergency relief capacity to private not-for-profit organizations for civic, religious or humanitarian objectives, without contemplation or receipt of compensation, are not considered employees due compensation under the Fair Labor Standards Act (FLSA). However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.

Where employers are requested to furnish their services, including their employees, in emergency circumstances under Federal, state or local general police powers, the employer’s employees will be considered employees of the government while rendering such services. No hours spent on the disaster relief services are counted as hours worked for the employer under the FLSA.

What is the law that applies to the job rights for National Guard and Reserve members being called up for active duty?

The law is the Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. 4301-43354. The Department of Labor’s Veterans’ Employment and Training Service (VETS) administers this law.

Does USERRA protect members of the National Guard who are activated under State law?

No, the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies only when members of the National Guard are activated under Federal authority, generally title 10 or title 32, United States Code. Members of the National Guard activated under State law usually receive USERRA-like protection under the laws of the State involved.

Does USERRA require that an employee receive pension credit while absent to perform military service?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to a wide range of pension plans including defined benefit and defined contribution plans. Upon reemployment following qualifying military service, an employee must be treated for vesting and benefit accrual purposes as if he or she had been continuously employed.

If benefits are tied to employee contributions, the employee must be allowed a specified period of time to make up contributions missed during the period of military service.

Can an employee be required to perform work outside of the employee's job description?

Yes, the Fair Labor Standards Act (FLSA) does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. This is true whether or not the work asked of the employee is listed in the employee's job description.

As part of your pre-pandemic planning, you may want to consult your human resource specialists if you expect to assign employees work outside of their job description during an influenza pandemic. You may also wish to consult bargaining unit representatives if you have a union contract.

How many hours per day or per week can an employee work?

The Fair Labor Standards Act (FLSA) does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

May employers change work hours/schedules to minimize contact between employees?

Yes, unless your workforce is represented by a labor union and the collective bargaining agreement covers work hours or scheduling policies, or if your workers are covered by other employment contracts that specify work hours and schedules. Note that discharging, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Also, as part of your pre-pandemic planning, you may want to consult with your union about scheduling actions that you might have to make in an emergency situation.

During a severe pandemic, may employers close lunch rooms and other gathering places to minimize contact between employees?

Yes, unless your workforce is represented by a labor union and the collective bargaining agreement covers on-site break locations policies, or if your workers are covered by other employment contracts that deal with these issues.

Note that discharging, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (Internet provider service, computer, additional phone line, increased use of electricity, etc.)?

Employers may not require employees who are covered by the Fair Labor Standards Act (FLSA) to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation. (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

Do employers have to pay employees their same hourly rate or salary if they work at home?

If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.

If this is not the case and you do not have a union contract or other employment contracts, under the Fair Labor Standards Act (FLSA) employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

If the Service Contract Act (SCA) or state or local laws regulating the payment of wages also apply, nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority. (See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information on the SCA or call 1-866-487-9243.)

Do OSHA’s regulations and standards apply to the home office? Are there any other Federal laws employers need to worry about if employees work from home?

The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA's policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

The Fair Labor Standards Act (FLSA) and its implementing regulations do not prevent employers from implementing telework¹ or other flexible work arrangements allowing employees to work from home. Employers would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements; and to pay no less than the minimum wage for all hours worked and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek to non-exempt employees.

Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work. Non-exempt employees must receive the required minimum wage and overtime pay free and clear. This means that when a covered employee is required to provide the tools and equipment (e.g., computer, internet connection, facsimile machine, etc.) needed for telework, the cost of providing the tools and equipment may not reduce the employee’s pay below that required by the FLSA. (See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

Under the Americans with Disabilities Act, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship. However, an employer may instead offer alternative accommodations as long as they would be effective. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

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¹For purposes of this discussion, telework does not include industrial homework as defined in the FLSA. Industrial homework means the production of goods by a person for an employer in or about the person’s home. Certification from DOL is required for the performance of industrial homework in seven specific industries: women’s apparel; jewelry manufacturing; knitted outerwear; gloves and mittens; button and buckle manufacturing, handkerchief manufacturing and embroideries.

May employers send employees home if they show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work?

It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees. This plan or policy could permit you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status. It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made under this plan or policy at the earliest feasible time.

Your company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work. If the leave qualifies as Family and Medical Leave Act protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have any questions.)

Remember when making these decisions to exclude employees from the workplace, you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, union membership or veteran status. However, you may exclude an employee with a disability from the workplace if you:

obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and
determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.

(See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)

If organizations have a union contract, do they have to follow the contract’s provisions if they want to send home employees who show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid?

Yes. You will need to abide by the contract’s provisions, to the extent they do not conflict with federal equal employment opportunity and family and medical leave laws. In addition, discharging, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

May an employer require an employee who is out sick with the flu to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes, however, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

During a pandemic health crisis, under the Americans with Disabilities Act¹ (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would

impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

In situations in which an employee’s leave is covered by the Family and Medical Leave Act, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied. Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.

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During an 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?

The circumstances under which employees have a right to refuse to work are very limited. Refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under the Occupational Safety and Health Act (OSH Act). (A union contract or state law may, however, provide for such rights.) Employees may refuse an assignment only if:

(1) they reasonably believe that doing the work would put them in serious and immediate danger;

(2) they have asked their employer to fix the hazard;

(3) there is no time to call the Department of Labor’s Occupational Safety and Health Administration (OSHA); and

(4) there is no other way to do the job safely. 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 they are exposed to an imminent danger. "Good faith" means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.

In addition, employers should be aware that an employee’s inability to attend work or perform certain duties could be related to a disability. In this instance, the employer may need to consider the implications of its actions under the Americans with Disabilities Act¹ before proceeding. For example, if an employee with a disability could safely perform the essential functions of the job with a reasonable accommodation (e.g., telework, changes in shift times), then an employer would need to provide the accommodation, in lieu of termination, unless it would pose an undue hardship. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)

We would encourage employers to prepare a plan of action specific to your workplace. As a practical matter, employers will likely want to be flexible regarding attendance during a pandemic. It would also be prudent to notify employees and, if applicable, their bargaining unit representatives about decisions made at the earliest feasible time.

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Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?

An employee who is sick or whose family members are sick may be entitled to leave under the Family and Medical Leave Act (FMLA) under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees. (See Community Strategy for Pandemic Influenza Mitigation.)

Where can I find a comprehensive set of questions and answers about workplace policies and practices during a flu outbreak?

Flu.gov has a comprehensive list of questions and answers prepared by the US Department of Labor at http://answers.flu.gov/categories/284.

The workplace topics cover:

Why should businesses have flexible leave policies or alternate work schedules during a flu outbreak?

Flexible leave policies and alternate work schedules will help prevent the spread of flu at your workplace, allow employees to continue to work or function while limiting contact with others, help maintain continuity of operations, and help people manage their health and their family’s needs.

What steps can businesses take to keep employees from getting sick, especially during flu season?

Businesses should take the steps below to keep employees from getting sick with flu.

Promote vaccination. Encourage all employees to get vaccinated for seasonal flu. Review the health benefits you offer your employees and consider including flu vaccination. If possible, you should offer seasonal flu vaccination opportunities at the worksite.
Advise all employees to stay home if they are sick until at least 24 hours after they no longer have a fever (100 degrees Fahrenheit or 38 degrees Celsius) or signs of a fever (have chills, feel very warm, has a flushed appearance, or is sweating). This should be determined without the use of fever-reducing medicines (any medicine that contains ibuprofen or acetaminophen). They should stay home until at least 24 hours after they no longer have a fever, even if they are using antiviral medicines. Businesses should review their policies and practices to consider ways to allow flexibility for employees to stay home when they are sick.
Encourage hand cleanlinessby providing
- education and reminders about washing their hands, and
- easy access to running water and soap or alcohol-based hand cleaners.

See the CDC handwashing video.

Encourage "respiratory etiquette"by providing
- education and reminders about covering coughs and sneezes with tissues, and
- easy access to tissues and trash cans.
Routinely clean surfaces and items that are more likely to have frequent hand contact with cleaning agents that are usually used in these areas. Additional disinfection beyond routine cleaning is not recommended.
Address travel concerns. Provide information to employees overseas about what to do if they become sick.

What additional steps should businesses and employees take if the flu becomes more severe?

In addition to the steps that businesses should be taking all the time to prevent flu, businesses and employees may consider the steps below if flu conditions become more severe.

Educate employees to recognize the symptoms of influenza. Symptoms of flu include fever or chills and cough or sore throat. In addition, symptoms of flu can include runny nose, body aches, headache, tiredness, diarrhea, or vomiting. Workers who have flu-like symptoms should be asked to go home. Continue to advise workers to check for any signs of illness before coming to work each day.
Prepare for employees to stay home from work and extend the time sick employees stay home to at least 7 days. People who are still sick after 7 days should continue to stay home until at least 24 hours after symptoms have gone away, even if they feel better sooner. Employees may stay home because they are sick, are at higher risk for complications, need to care for sick household members, or because schools have been dismissed or childcare centers have closed and they need to care for their children. Review sick-leave policies and consider making them flexible and consistent with public health recommendations.
Promote flu vaccination in the community. Make sure your employees know where they and their family can get seasonal flu vaccination in the community. Find out about health providers, pharmacies or clinics that offer seasonal flu vaccinations in your community. Partner with a pharmacy or provider to get your employees vaccinated

From a business standpoint if there is a confirmed case of the flu in the home is it still safe to allow that employee to come to work if he/she is not sick? What are the chances of it being transferred to family members?

An employee with an ill household member may go to work. But it is especially important that these employees monitor themselves for illness.

Employees with school-aged children may need to stay home to care for their children. Employers should review leave policies for the flexibility to allow employees to stay home if they need to care for their children or other household members. If flu conditions are more severe, CDC guidance for school-aged children is that they should stay home for 5 days from the time someone in their home became sick. However, this guidance does not apply to adults.

People infected with seasonal influenza (flu) shed virus and may be able to infect others from 1 day before getting sick to 5 to 7 days after. This can be longer in some people, especially:

Children;
People with weakened immune (body defense) systems; and
People infected with the 2009 H1N1 virus.

Many people with flu illness will continue shedding the flu virus 24 hours after their fevers go away, but at lower levels than during their fever. In some cases, shedding of the flu virus can be detected for 10 days or more by reverse-transcription polymerase chain reaction (RT-PCR). So, when people who have had flu-like illness return to work, school, or other community settings, they should:

Continue to practice good respiratory etiquette and hand hygiene; and
Avoid close contact with people they know to be at increased risk of flu-related complications.

Because some people may shed flu virus before they feel ill, and because some people with flu will not have a fever, it's important that all people:

Cover their cough; and
Wash their hands often.

I have a disability -- can my employer require me take a flu vaccine?

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

For more workplace questions and answers, go to:

http://answers.flu.gov/search/results?q=workplace

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