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Voluntary Isolation, Voluntary Home Quarantine - FAQs:
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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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.
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.
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.
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.
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.
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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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.
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