Can an employee stay home under Family and Medical Leave Act (FMLA) leave to avoid getting the flu?

The Family and Medical Leave Act (FMLA) protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition.  Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA.  Employers should encourage employees that are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.  (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.  

Last Reviewed: 09/01/2011

• 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?
• Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?
• Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?
• Why should businesses have flexible leave policies or alternate work schedules during a flu outbreak?

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