Tuesday, November 24, 2009

Do you know? H1N1 and employees’ leave rights

The Department of Labor has published two guides for employers trying to navigate H1N1 and employees’ leave and pay rights (both PDFs):

Neither presents earth-shattering legal information. Having said that, the Department of Labor has done a nice job compiling useful tips for employers to turn to when an employee misses work because of the H1N1. Some of the more interesting nuggets are as follows:


  • The Department of Labor urges employees who themselves have H1N1, or who have family members with H1N1, to stay home. However, the DOL takes no position on whether H1N1 is covered under the FMLA as a “serious health condition.” Employers, though, are “encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.”
  • The FMLA does not cover leave taken by an employee to avoid exposure to the flu.
  • If an employee’s child’s school is closed, the FMLA does not require leave to care for a healthy child at home.
  • Federal law does not require employers 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.
  • An employer may 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, potentially subject to limits in the FMLA and ADA.


  • If a business temporarily closes because of H1N1, that employer is not obligated to pay non-exempt employees for any hours they do not work.
  • An employer can require that an employee perform work outside of the employee’s job description to cover for an absent employee.
  • An employer may encourage or require employees to telework (work from an alternative location such as home) as an infection control strategy. Employers do not have to pay the same wage for telework, unless required to do so by a collective bargaining agreement or other contract.
  • Employers are not required to cover additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?

For more on H1N1 preparedness, I recommend the following earlier posts:

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.