Once a pandemic begins, may employers mandate alternative work schedules (e.g., flex-time, staggered shifts) or alternative work arrangements (e.g., telework) to promote social distancing?

Once a pandemic begins, changing work schedules or job duties is usually within your discretion as long as such changes are nondiscriminatory and are consistent with any applicable collective bargaining agreement or employment contract.  Plans for using alternative schedules should be communicated to your employees in your contingency plans.  Employing alternative work arrangements to achieve social distancing among employees is within your rights and is in the interest of your employees.  

However, prior to pandemic, employers should be very careful not to make employment related decisions based on perceptions of an employee’s availability during a pandemic, unless the decision is consistent with company policy and applied in a nondiscriminatory manner.  Remember you cannot discriminate 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 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: 08/31/2011

• What legal responsibility do employers have to allow parents or care givers time off from work to care for the sick or children who have been dismissed from school?
• 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 an flu pandemic, can a healthy employee refuse to come to work, travel, or perform other job duties because of a belief that by doing so, he or she would be at an increased risk of catching the flu?
• May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

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