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).

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 Reviewed: 09/01/2011

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

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