Child Social Distancing - FAQs:

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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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.

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.

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.

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?"

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.

Child Social Distancing - FAQs:

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