May employers mandate employees stay home if they or members of their family are known or suspected to have the flu or been exposed to someone with the flu?
Yes, even if an employer believes that individual would pose a direct threat in the workplace due to a disability, the employer would not violate the Americans with Disabilities Act (ADA) if it required a qualified individual with a disability to stay home. A direct threat is a significant risk of substantial harm to safety that cannot be eliminated or reduced by a reasonable accommodation. A determination of direct threat must be based on the most recent and reputable medical information. If a pandemic illness did not rise to the level of a disability, then a decision to require infected employees to stay home would not implicate the ADA.
It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees. 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. Also, remember that any employment decision mandating that certain employees stay home must comply with federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.
Note: As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.
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: 10/06/2009
Related Questions:
- 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?
- May employers fire employees (in non-health care sectors) if they refuse to follow the company’s rules to control infection and increase hygienic practices during a pandemic?
- Can an employee stay home under Family and Medical Leave Act (FMLA) leave to avoid getting the flu?
- 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?
