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Workplace FAQ's Concerning Pandemic Influenza

Employers are beginning to confront many thorny questions about how best to respond to concerns about the spread of swine influenza (H1N1 virus) in the workplace.  For several years, federal, state and local governments have been working hard to prepare for a potential pandemic.  As part of that effort, the federal government developed a series of Frequently Asked Questions, addressing workplace issues that may arise in a pandemic.  We are providing links to these FAQ’s below which can be found if you click here.

As you will see, some questions do not have clear cut answers. Also, while some employer responses to workplace concerns may appear reasonable, given the threats to health and safety, they may raise concerns under existing federal laws.  The U.S. Department of Labor and other federal agencies reportedly 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 and answers to questions, therefore, are based on current laws and regulations. 

Finally, as noted in many FAQ answers, employers also 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 any applicable state or local laws.

Leave/Leave Policies (including Family and Medical Leave) 

• 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?
• Which employees are eligible to take Family and Medical Leave Act leave?
• 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?
• Can an employee stay home under Family and Medical Leave Act (FMLA) leave to avoid getting pandemic influenza?
• May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?
• What types of policy options do employers have for preventing abuse of leave?

Return to Work 

• May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Layoff/Termination/Firing  

• Will workers qualify for unemployment if an influenza pandemic hits and their employer has to shut down operations?
• If an employer temporarily closes his or her place of business because of an influenza pandemic and chooses to lay off some but not all employees, are there any federal laws that would govern this decision?
• If an employer lays off employees, will the employees be eligible for unemployment insurance? Will the employer’s unemployment taxes go up?
• During a pandemic, some employees may not be able to come to work because public transportation is not available. May an employer lay them off?
• Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?
• If a business is open during a pandemic, can the employer fire or layoff a worker who cannot come to work because of a state, federal or locally ordered quarantine in the town where she lives? (This worker is neither sick, nor caring for a sick family member.)
• 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?
• What notices must be given before an employee is terminated or laid off?

Sending Workers Home 

• 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 mandate employees stay home if they or members of their family are known or suspected to have pandemic influenza or been exposed to someone with pandemic influenza?

Refusal to Work 

• During an influenza 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 pandemic influenza?
• What if an employee has asked the Occupational Safety and Health Administration (OSHA) to investigate because they believe it is unsafe to come to work or perform specific duties and claims retaliation if the employer takes action against them for refusing to come to work or perform these duties?

Pay Policies 

• An employee was laid off and did not receive his/her last paycheck. What remedies are available?
• How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?
• If individuals volunteer to a public agency, are they entitled to compensation?
• If individuals volunteer to a private, not-for-profit organization, are they entitled to compensation?

Work Restrictions 

• Can an employee be required to perform work outside of the employee's job description?
• How many hours per day or per week can an employee work?

Working at Home and Social Distancing 

• May employers change work hours/schedules to minimize contact between employees?
• 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?
• May employers close lunch rooms and other gathering places to minimize contact between employees?
• Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?
• In the event an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?
• Do employers have to pay employees their same hourly rate or salary if they work at home?
• Do OSHA’s regulations and standards apply to the home office? Are there any other Federal laws employers need to worry about if employees work from home?

Child Care at the Workplace 

• If an employer establishes a child care center at the workplace for children who have been dismissed from school, will it violate the CDC’s community social distancing strategies for children?

Liability Issues 

• Could an organization be held liable if their employees or customers contract pandemic influenza while working at or visiting its place of business?
• Could employers be held liable if employees are injured while teleworking?
• Can employers close their place of business to employees or customers known to have contracted or to have been exposed to pandemic influenza?  

Pre-Pandemic Workplace Planning 

• What kinds of information should be conveyed to employees to prepare them for the issues that are likely to be of concern to them should a pandemic occur? What is the best way to communicate this information?
• What changes should be made, if any, to employee travel and what should be done to ensure employees living abroad are prepared?
• Should employers encourage employees to obtain seasonal flu vaccines and offer them in the workplace?

Workplace Frequent Questions by Category:

• Human Resource Policies and Pandemic Planning
• Equal Employment Opportunity (EEO) and Privacy Issues
• Workplace Benefits
• Workplace Safety and Health Issues
• Unemployment Issues and Financial Assistance
• Private Sector Workplace Issues

Jackson Lewis attorneys are available to answer your questions about this developing issue. Members of our Workplace Safety Compliance Practice Group and Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation Practice Group can assist in developing a plan specific to your workplace needs. 

Related Links
How Employers Should Respond to the Swine Flu Outbreak