UPDATE: COVID-19

UPDATE: COVID-19

Questions and Answers

COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act

Q: 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?

A: Federal law now requires employers with under 500 employees to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu or are caring for someone with the flu.

If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.

Q: 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?

A: It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees.  This plan or policy could permit you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.  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.

Your company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work.  If the leave qualifies as FMLA-protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have any questions.)

Remember when making these decisions to exclude employees from the workplace, you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, union membership or veteran status.  However, you may exclude an employee with a disability from the workplace if you:

  • obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and
  • determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.

(See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)

Q: 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?

A: Yes.  However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.

During a pandemic health crisis, under the Americans with Disabilities Act1 (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work.  Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would

  • impair his ability to perform essential job functions (i.e., fundamental job duties) with or without reasonable accommodation, or,
  • pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.

In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work.  Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work.  If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied.  Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic. 

Q: May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?

A: Federal equal employment opportunity laws do not prohibit employers from changing their paid sick leave policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.  Be sure also to consult state and local laws.

In addition, you should consider that if your workforce is represented by a labor union and the collective bargaining agreement covers sick leave policies, you may be limited in either the manner in which you change the policy or the manner of the changes themselves because the collective bargaining agreement would be controlling. In a workplace without a collective bargaining agreement, employees may have a contractual right to any accrued sick leave, but not future leave.

Your sick leave policy also has to follow the requirements of the FMLA (if your employees are covered by the Act), and it needs to be consistent with federal workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA). (See the U.S. Department of Labor, Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.  See the U.S. Equal Employment Opportunity Commission or call 1-800-669-4000 if you have questions on ADA.)

Q: 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?

A: The federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, or disability may apply.  (See the U.S. Equal Employment Opportunity Commission (EEOC) or call 1-800-669-4000 if you have questions.)  Other specific Federal laws that prohibit discrimination on these or additional bases may also govern if an employer is a Federal contractor or a recipient of Federal financial assistance.

You may also not discriminate against an employee because the employee has requested or used qualifying FMLA leave.  (See the U.S. Department of Labor, Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

For further information see the Department of Labor (DOL) website.

For further information about Coronavirus, please visit the HHS’s Centers for Disease Control and Prevention.

If you would like additional information or a consultation concerning employee\employee issues, please call or email our Employment Law Section Chair Gary A. Isaacs, Esquire at (561) 844-3600 or gai@cohennorris.com.

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