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.

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.

Last Updated: 01/24/2008

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