On November 9, 2009 the DOL Wage and Hour Division issued guidance on the availability of FMLA leave where the employee or covered family member is ill with pandemic flu. In relevant part, the DOL notes that FMLA leave is NOT available to avoid exposure to the flu. The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza.
Similarly, the DOL notes that the FMLA does not cover an employee's absence to care for healthy children who have been dismissed from school or child care to prevent the spread of the influenza. Eligible employee's may take FMLA leave to care for a child who is sick with pandemic flu, but only if the illness rises to the level of a serious health condition as defined by the FMLA.
The DOL notes that employers may have a plan or policy that allows the employer to send employees home if they show symptoms of pandemic influenza, provided the plan and the employer's decisions comply with all applicable laws, including federal anti-discrimination laws.
Consistent with the FMLA and ADA, the DOL advises that employers may require an employee who is out sick with pandemic influenza to provide a doctors's note, submit to a medical exam, or remain symptom-free for a specified period of time before returning to work. Under the FMLA, to do so the employer must 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, and the employee must have been notified of the requirement in advance. The terms of a collective bargaining agreement may also impact an employee's right to return from FMLA leave.
Finally, the DOL cautioned employers that laying off employees who are unable to come to work because they are taking care of sick family members must not discriminate against employee's for exercising FMLA rights. The DOL suggests that, in lieu of laying off employees, employers consider other options such as telecommuting. The DOL also suggests that employers prepare a plan of action.
The DOL Q & A is available by clicking on the attached link. http://www.dol.gov/whd/healthcare/flu_FMLA.pdf
OPM has also offered general guidance on planning for pandemic flu. http://www.opm.gov/pandemic/OPM-Pandemic_AllIssuances.pdf