Some employees may not be able to come to work during a severe pandemic because they have to take care of sick family members. May an employer lay them off?

It depends.  If an employee is covered and eligible under the Family and Medical Leave Act (FMLA) and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states may have similar family leave laws.  In those situations, covered employers must comply with the federal or state provision that provides the greater benefit to their employees.  (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

In lieu of laying off employees in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.

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. 

What if the business has a union contract, does it have to follow the contract’s provisions?

Yes.  Remember that an employer must observe any employment benefit program or plan (including that provided through a collective bargaining agreement) that provides greater family or medical leave rights to employees than the rights established by the FMLA. Conversely, the rights established by the FMLA may not be diminished by any employment benefit program or plan.  In addition, discharging, laying off, 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 Reviewed: 09/01/2011

• During an influenza pandemic, do employers have to provide new accommodations for a person with a disability (e.g., special work hours) due to lack of public transportation or other similar circumstances? What are the organization’s obligations if it can no longer provide an accommodation (e.g., the sign language interpreter is home sick and no others are available)?

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