Leave & Leave Policies - FAQs:

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.

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).

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. 

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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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.

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).

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. 

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.)

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.

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).

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.