Workplace Pandemic

PREPARING WORKPLACES FOR H1N1 INFLUENZA

September 2009

RJF Agencies Inc. 6000 Nathan Lane North | Suite 400 | Minneapolis | MN | 55442-1662 | USA

763-746-8000 | www.rjfagencies.com

Table of ContentsPANDEMIC FLU PLAN ................................................................................................................................ 2

KEY PANDEMIC PLANNING QUESTIONS BY ROLE..........................................................................................2 DEVELOPING YOUR PANDEMIC FLU RESPONSE PLAN..................................................................................3

PROTECT EMPLOYEES FROM PANDEMIC INFLUENZA ........................................................................ 7 PROVIDE RESOURCES TO PROMOTE PERSONAL HYGIENE .........................................................................7 WORK SURFACE CLEANING AND DISINFECTION ..........................................................................................7 EDUCATE EMPLOYEES ..........................................................................................................................................8 ENCOURAGE SICK EMPLOYEES TO STAY HOME.............................................................................................9 DEVELOP FLEXIBLE WORKPLACE PRACTICES.................................................................................................9 ENCOURAGE EMPLOYEES TO GET VACINNATED ..........................................................................................9 PREPARE A RESPONSE IN THE EVENT AN EMPLOYEE BECOMES SICK WHILE AT WORK.....................10

FREQUENTLY ASKED QUESTIONS......................................................................................................... 11

ADDITIONAL RESOURCES ...................................................................................................................... 13

APPENDIX 1- HUMAN RESOURCE POLICIES AND PANDEMIC PLANNING WORKPLACE QUESTIONS ............................................................................................................................................... 14

LEAVE/LEAVE POLICIES (INCLUDING FAMILY AND MEDICAL LEAVE) ..................................................................14 RETURN TO WORK ..............................................................................................................................................18 LAYOFF/TERMINATION/FIRING .......................................................................................................................19 SENDING WORKERS HOME...............................................................................................................................23 REFUSAL TO WORK..............................................................................................................................................24 PAY POLICIES.........................................................................................................................................................26 WORK RESTRICTIONS.........................................................................................................................................27 WORKING AT HOME AND SOCIAL DISTANCING..........................................................................................27 RE-EMEMPLOYMENT RIGHTS...........................................................................................................................32 CHILD CARE AT THE WORKPLACE...................................................................................................................32 LIABILITY ISSUES ..................................................................................................................................................32 PRE-PANDEMIC WORKPLACE PLANNING ......................................................................................................33

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Introduction - Preparing for the Flu

During an influenza pandemic, businesses and other employers have a key role in protecting employees' health and safety. Preparedness is the best method to defend against the impacts of all threats and hazards, including public health threats.

There is a plethora of information available regarding influenza and novel H1N1 influenza. This guide is a compilation of these tools and best practices to help plan for business continuity and employee preparedness.

The World Health Organization (WHO) considers the overall severity of the pandemic to be moderate, meaning most people recover from infection without the need for hospitalization or medical care. However, the WHO is concerned about current patterns of serious cases and deaths that are occurring primarily among young persons, including the previously healthy, and those with pre-existing medical conditions or pregnancy.

WHO raised the H1N1 alert to its highest level, declaring the 2009 H1N1 flu virus has reached the global pandemic level. The announcement that it has raised the alert level to 6, the highest designation, means that the disease is more widespread, not deadlier or more dangerous than before. Because H1N1 may be widespread, businesses will play a key role in protecting employees’ health and safety as well as limiting the negative impact to the economy and society.

There are three major steps employers should do to prepare for an influenza pandemic. These are:

1. Review or develop a plan to maintain operations during a pandemic

2. Protect employees from pandemic influenza and minimize the spread of influenza in your workplace

3. Understand federal, state and local benefits and employment laws and the potential impact they may have on business operations and emergency plans.

“As we face the possibility of a wider H1N1 influenza outbreak, it is difficult to predict how the virus may or may not change. The severity of illness that 2009 H1N1 influenza flu will cause or the amount of illness that may occur as a result of seasonal influenza during the 2009-2010 influenza season cannot be predicted with a high degree of certainty. Therefore, businesses should plan to be able to respond in a flexible way to varying levels of severity and be prepared to take additional steps if a potentially more serious outbreak of influenza evolves during the fall and winter.”

Janet NapolitanoSecretary of Homeland Security

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Pandemic Flu Plan Businesses do not want to be caught unprepared when the flu season hits. Regardless of the size or type of business, planning now can put strategies into place that will help protect the business and its employees. It is important that the following list of recommendations be reviewed carefully and applied in the most appropriate way to the specific company. Some issues to consider are:

Companies should leverage their existing crisis management plans and ensure that pandemic plans are aligned with other planning efforts.

Planning should follow a continuum of pre-event, event, and post event-considerations.

As there is no way to predict how severe the pandemic will be, thresholds for when to implement certain emergency measures should be included in planning.

KEY PANDEMIC PLANNING QUESTIONS BY ROLE CEO/Board Director How do we anticipate risks from a severe

pandemic that could harm our company? What are the implications of not being able

to meet the expectations of our customers, investors, employees, and suppliers?

Can preparations taken to mitigate the impact of a severe pandemic also enable us to better prepare for other risks (i.e., naturally occurring, accidental, or deliberate)?

CFO How much will a pandemic cost our

company? What are the regulatory and fiduciary

requirements for managing the risk of a pandemic in our business?

What is the business case for the investment required to protect our company from the impacts of a pandemic?

COO Which products and/or services must

continue to be produced and delivered, even in the event of a pandemic?

Can the operations continue to function despite fewer employees, the loss of critical employees, or shortfalls in other essential resources?

What will be the demand impact on our products and services before, during, and after a pandemic?

HR To what extent have HR policies been

reviewed to ensure they meet the needs of protecting employees and the business during a pandemic?

Have critical employees within the organization been identified, and have alternates for those roles been established and cross-trained?

What would be the impact to the business if we tried to continue to operate while dealing with 40 percent employee absenteeism?

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DEVELOPING YOUR PANDEMIC FLU RESPONSE PLAN

Impact on your organization The aim of a Pandemic Flu Plan is to ensure businesses continue to provide essential services to clients or customers. Create a Pandemic Flu Team. Have defined roles and responsibilities for preparedness and

response planning. Make sure the team is from a wide range of stakeholders (e.g. managers, supervisors, human resources, health and safety representatives, trade union officials). For small companies, this team may only be two people, but it should always be more than one in case they are the first to get ill.

Determine who will be responsible for assisting ill individuals in the workplace, and make

sure at least one person can serve as the “go to” person if a worker becomes sick. Identify essential employees, essential business functions, and other critical inputs (e.g.

raw materials, suppliers, subcontractor services/products, and logistics) required to maintain business operations should there be disruptions during the 2009 H1N1 flu outbreak – and make plans on how to communicate with people that perform essential tasks to provide them assignments and work direction. Explore other ways you can continue business operations if there are supply chain problems or other disruptions.

Prepare business continuity plans so that if there is significant absenteeism or other

changes in operations during this outbreak, the company can still maintain operations. Organizations’ business continuity plans should address situations like this from two angles: productivity and preventing illness. One, develop contingency plans for how the organization will continue productive operation in the face of an ongoing outbreak, and two, to examine how the organization can modify operations to minimize the risk of exposure and potential for spreading any existing illness.

To develop contingency plans, some key questions organizations should consider are: What are the core functions that are critical to continuing business? What are the supplies and materials necessary to produce goods or deliver services? What are the key roles or essential personnel necessary to conduct business?

For each of these questions, organizations should then consider the following: How might they be impacted? What should be done proactively to protect them? What alternative solutions can be used if necessary?

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Understand federal, state and local benefits and employment laws that may potentially

impact business operations and emergency plans. Regardless of how the workplace may be affected by the H1N1 pandemic, administer all of the employer’s policies and practices ethically, equitably, consistently and in compliance with all applicable laws and collective bargaining agreements. For more information, please see Appendix 1- Human Resources Policies and Pandemic Planning Workplace Questions.

Consider training ancillary workers (cross-trainees, retirees, temps, contractors). Develop

plans for changes in demand for products or services - both increases and decreases.

Assess the impact of travel restrictions (local, national or global). Identify where employees need to travel and stay up-to-date with travel recommendations from the following sources:

International SOS www.internationalsos.com/pandemicpreparedness Centers for Disease Control and Prevention www.nc.cdc.gov/travel/content/outbreak-notice/novel-h1n1-flu-global-situation.aspx

Create a communication plan for how the company will inform internal and external

people about your response to the pandemic. Review and update this communication plan periodically as it will change according to the types of activities the company are undertaking.

Test plans and revise them if necessary.

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Impact on employees and customers Up to 50% of a company’s workforce may require time off at some stage over the entire period of the pandemic. The pandemic profile seems to indicate that it will build to a peak lasting two to three weeks where 15-20% of employees may be absent. Additional employee absences could result from other illnesses, taking time off to provide care for dependents, family bereavement and fear of infection. The government may impose travel restrictions and advise schools and day cares in an area to close. Small businesses (5-15 employees) or small teams within larger businesses are likely to suffer higher percentages of employee absences – up to 30%-35% over a two-to-three-week period. Although the above figures are based on previous pandemics, remember that a new outbreak may not conform, so it is best to keep plans flexible.

When estimating the total number of employees absent, consider the demographics of your work teams, including the percentage that have childcare or other family care responsibilities, ‘normal’ absence levels and options for home or remote working.

An employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries. An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g. mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g. chronic illnesses that weaken immunity). Below is a sample ADA-compliant survey that could be given to all employees before a pandemic.

ADA-Compliant Pre-Pandemic Employee Survey

Directions: Answer “yes” to the whole question without specifying the reason or reasons that apply to you. Simply check “yes” or “no” at the bottom.

In the event of a pandemic, would you be unable to come to work because of any of the following reasons: If schools or day-care centers were closed, you would need to care for a child; If other services were unavailable, you would need to care for other dependents; If public transport were sporadic or unavailable, you would be unable to travel to work, and/or; If you or a member of your household fall into one of the categories identified by CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g. pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES __________ NO __________

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Assess the business need for continued face-to-face contact with customers/suppliers and consider plans to lower the number and/or type of face-to-face meetings (e.g. video or teleconferencing instead).

Identify employees and key customers with special requirements and incorporate them into the plan.

Maintain a contact list of current suppliers and develop an alternate list of suppliers for critical supplies and essential resources and services.

Ask your suppliers and sub-contractors about their Business Continuity plans. You do not need details but you do want to feel reassured that they have done some planning – remember your organization is only as good as those on whom it depends.

Establish policies during a pandemic Examine leave of absence, telecommuting, and employee compensation policies and review with all employees so they are up-to-date on sick leave policies and employee assistance services that are covered under any of your health plans.

Establish policies for absences unique to a pandemic, including policies on when a previously ill person is no longer infectious and can return to work after illness (e.g. when they are no longer showing symptoms and feel better) and confirm them with trade unions, employees representatives and other professional representative bodies.

Establish policies that create flexible worksites, including working from home and flexible work hours.

Establish policies that help reduce the spread of influenza at the worksite. These should promote respiratory hygiene, cough etiquette, increased cleaning regimes and asking those with influenza symptoms to stay at home. These will be discussed in greater detail in the next section titled “Protect Employees from Pandemic Influenza.”

Set up authorities, triggers and procedures for activating and terminating the company’s response plan, altering operations (e.g. maybe reducing operations in affected areas) and transferring key knowledge to relevant employees. This might include nominating deputies for key employees in advance.

Establish policies that restrict travel to affected areas (consider local, national and international regions), and provide guidance for employees returning from affected areas.

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Protect Employees from Pandemic Influenza During an influenza pandemic, transmission of the pandemic virus can be anticipated in the workplace. Employers have a responsibility of providing a safe working environment for all employees and minimizing the spread of influenza. Here are some recommended guidelines for protecting employees from pandemic influenza. PROVIDE RESOURCES TO PROMOTE PERSONAL HYGIENE For most employers, protecting employees will depend on emphasizing proper hygiene (disinfecting hands and surfaces) and practicing social distancing. Social distancing means reducing the frequency, proximity, and duration of contact between people (both employees and customers) to reduce the chances of spreading pandemic influenza from person-to-person. All employers should implement good hygiene and infection control practices.

The Centers for Disease Control and Prevention (CDC) has prepared posters, brochures, and other materials for businesses to use in offices, hallways, and the bathroom to educate employees about ways to prevent the spread of flu.

WORK SURFACE CLEANING AND DISINFECTION Employers should provide resources including tissues, no-touch trash cans, hand soap, hand sanitizers, disinfectants, and disposable towels for employees to clean their work surfaces. Normal cleaning procedures and frequencies are effective for the majority of surfaces to minimize potential exposures. Frequently clean all workplace surfaces that are commonly touched by multiple people, such as elevator buttons, shared equipment, doorknobs, etc. Use the cleaning agents that are usually used in these areas and follow the directions on the label. No additional disinfection beyond routine cleaning is recommended. Commonly touched surfaces that are not included in daily cleaning routines should be cleaned more frequently during outbreaks using standard cleaning products.

COMMUNICATION RESOURCES FOR BUSINESSES TO SHARE WITH EMPLOYEES

ABOUT FLU PREVENTION

Centers for Disease Control and Prevention www.cdc.gov/germstopper/materials.htm

Department of Veterans Affairs www.publichealth.va.gov/flu/materials

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EDUCATE EMPLOYEES Miscommunication, or the lack of communication and education, has the potential to further escalate apprehension and the spread of the virus. Employees need education to prepare them for both health and emotional issues. The goal is to provide an exchange of relevant, up-to-date information with employees to allow them to make well-informed decisions and take appropriate actions to protect the health and safety of themselves and their families.

Discussing the upcoming flu season at work can help encourage communication, reduce anxiety, foster the importance of good hygiene and cough

etiquette, and promote early vaccination for both seasonal and novel H1N1 influenza.

It is critical for business leaders to implement outreach and awareness programs designed to inform and brief employees with factual information and prevention measures. There are various platforms of communication based on the specific company culture and practices. Hotlines, dedicated Web sites, workshops, brochures, posters, telephone trees, and social media are just a few ways. At the core, these programs must include:

Guidance for preventing transmission (hygiene, social distancing and sanitizing common areas);

Emphasizing and disseminating policies so employees can feel secure that their jobs and benefits will remain secure if they get sick or have a family member who falls sick;

Information sources for resolving issues and getting support (e.g. Employee Assistance Programs, United Way 2-1-1);

Communication stressing the importance of employees’ contribution to the overall viability of the company, and;

Education about the pandemic plans of the organization and how this could impact the company, customers, clients, and employees.

To encourage information sharing, collaboration, and interactivity, government agencies provide social media tools. These tools include widgets, mobile information, and online videos to reinforce and personalize messages, reach new audiences, and build a communication infrastructure based on open information exchange. Businesses can add these tools to their intranet or Web site with no maintenance requirements as the government maintains the information. These can be found at:

www.flu.gov/professional/business/toolkit.html www.cdc.gov/SocialMedia/Campaigns/H1N1/ www.hhs.gov/web/library/hhsfluwidgets.html www.flu.gov/news/socialmedia

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ENCOURAGE SICK EMPLOYEES TO STAY HOME One of the best ways to reduce the spread of influenza is to keep sick people away from well people. Currently, the CDC states that employees who have symptoms of influenza-like illness are recommended to stay home and not come to work until at least 24 hours after their fever has resolved. Therefore, employers should encourage sick workers to stay home. Unfortunately, not all employees comply because they fear losing their job or do not have paid time off available. However, sick employees coming into the office during the H1N1 flu season will undermine the health and productivity of the entire workplace. Employers can mitigate this by developing policies and a culture that encourage sick workers to stay at home without fear of reprisal.

If an employee has already used their allotted sick time, but becomes ill, companies have some options. The key is they need to be clearly spelled out within the company policy. These options may include:

Allow the employee to take additional time off without pay Have the employee make up the time when they return to work Request that the employee work from home Require the employee to use their personal days or other available paid time off Provide additional sick days to employees company-wide

DEVELOP FLEXIBLE WORKPLACE PRACTICES Workplace flexibility is a way to define how and when work gets done. It is critical to overall workplace effectiveness particularly when companies are already operating in a lean environment. This can be especially true during a pandemic when increased physical distance between employees and others is required. Therefore, companies should explore policies and practices, such as flexible worksites (e.g. telecommuting) and flexible work hours (e.g. staggered shifts), when possible. Regardless of the practice selected, guidelines must be developed and communicated.

ENCOURAGE EMPLOYEES TO GET VACINNATED Encourage employees to obtain a seasonal influenza vaccine, if it is appropriate for them according to CDC recommendations (www.cdc.gov/flu/protect/keyfacts.htm). This helps to prevent illness from seasonal influenza strains that may circulate at the same time as the 2009 H1N1 flu.

Encourage employees to get the 2009 H1N1 vaccine when it becomes available if they are in a priority group according to CDC recommendations. (www.flu.gov). Consider granting employees time off from work to get vaccinated when the vaccine is available in the community.

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PREPARE A RESPONSE IN THE EVENT AN EMPLOYEE BECOMES SICK WHILE AT WORK Employers should communicate to employees that sick employees will be asked to go home. It is important to note that mandatory leave must be applied consistently without regards to race, color, religion, sex, national origin, disability, or other protected class. When an employee is asked to go home, acknowledge his or her commitment and stress that the directive is not disciplinary in nature and that the company is merely looking out for the best interest of the workplace. CDC recommends that workers who appear to have an influenza-like illness upon

arrival or become ill during the day be promptly separated from other workers and be advised to go home until at least 24 hours after they are free of fever (100° F [37.8° C] or greater), or signs of a fever, without the use of fever-reducing medications.

Those who become ill with symptoms of an influenza-like illness during the work day should be: Separated from other workers and asked to go home promptly. (For

recommendations on personal protective equipment for a person assisting the ill employee, see Interim Recommendations for Facemask and Respirator Use to Reduce Novel Influenza A (H1N1) Virus Transmission at www.cdc.gov/h1n1flu/masks.htm.)

When possible and if they can tolerate it, workers with influenza-like illness should be given a surgical mask to wear before they go home if they cannot be placed in an area away from others.

If an employee becomes ill at work, inform fellow employees of their possible exposure in the workplace to influenza-like illness but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a sick co-worker should monitor themselves for symptoms of influenza-like illness and stay home if they are sick. For more information on privacy issues, please refer to: www.flu.gov/faq/workplace_questions/equal_employment/index.html#PrivacyIssues

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Frequently Asked Questions What is H1N1 Novel Influenza

www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/what.html Basic information explaining what is H1N1 novel influenza, the signs and symptoms, how it spreads, persons who are at increased risk of more severe illness, and what to do if you or your child have flu symptoms.

H1N1 Novel Influenza Fact Sheet www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/basics.html

Persons Who are at Increased Risk of More Severe Illness www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/comprisk.html

What You Need to Know about Novel H1N1 Flu www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/fairfacts.html

Worried About H1N1 (Swine) Flu? www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/worried.html

Protecting Yourself and Your Family www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/protect.html Everyday actions can help prevent the spread of germs that cause respiratory illnesses like influenza.

Preventing H1N1 Novel Influenza www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/prevent.html

Wash Your Hands! www.health.state.mn.us/handhygiene/index.html

Cover Your Cough www.health.state.mn.us/divs/idepc/dtopics/infectioncontrol/cover/index.html

Caring for the Ill at Home www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/index.html How to manage the symptoms of influenza.

Caring for Loved Ones at Home www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/caring.html

How to Manage Influenza Symptoms www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/managesymp.html

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Giving a Bed Bath www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/bedbath.html

Measuring Vital Signs www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/vitals.html

Preventing Dehydration www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/dehydration.html

Thermometers and Fever www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/care/thermometers.html

Family Preparedness and Pandemic Influenza Resources www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/basics/prepare.html Information for you and your family on how to prepare for an emergency, information about pandemic influenza and the possible pandemic threat we're facing right now.

Vaccine Basics: H1N1 Novel Influenza www.health.state.mn.us/divs/idepc/diseases/flu/h1n1/vaccine/basics.html Find out who should receive the vaccine first, get fact sheets, and read answers to common questions about the 2009 H1N1 vaccine.

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Additional Resources Minnesota Department of Health (MDH) www.mdhflu.com U.S. Department of Health & Human Services www.flu.gov Centers for Disease Control and Prevention (CDC) www.cdc.gov World Health Organization (WHO) www.who.int/en International SOS www.internationalsos.com/pandemicpreparedness National Library of Medicine http://sis.nlm.nih.gov/enviro/swineflu.html U of M Center for Infectious Disease Research and Policy (CIDRAP) www.cidrap.umn.edu

SOURCE: http://www.pandemicflu.gov/faq/workplace_questions/human_resource_policies/index.html US Department of Labor and Equal Employment Opportunity Commission

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Appendix 1- Human Resource Policies and Pandemic Planning Workplace Questions As an overall matter, employers 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 by any applicable state or local laws.

The following information was provided by the U.S. Department of Labor and Equal Employment Opportunity Commission.

Topics covered:

Leave/Leave Policies (including Family and Medical Leave) Return To Work Layoff/Termination/Firing Sending Workers Home Refusal To Work Pay Policies Work Restrictions Working At Home And Social Distancing Re-Employment Rights Child Care At The Workplace Liability Issues Pre-Pandemic Workplace Planning

LEAVE/LEAVE POLICIES (including Family and Medical Leave) Question: Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?

Answer: An employee who is sick or whose family members are sick may be entitled to leave under the Family and Medical Leave Act (FMLA) under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance


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coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.

The U.S. Department of Labor and other federal agencies 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. Answers to questions such as this one are based on current laws and regulations.

Question: 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?

Answer: 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. Certain state or local laws may have different requirements, which should be independently considered by employers when determining their obligation to provide paid sick leave.

If the leave qualifies as Family and Medical Leave Act 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.

Question: Which employees are eligible to take Family and Medical Leave Act leave?

Answer: Employees are eligible to take Family and Medical Leave Act (FMLA) leave if they work for a covered employer and:

Have worked for their employer for at least 12 months; Have worked for at least 1,250 hours over the previous 12 months; and Work at a location where at least 50 employees are employed by the employer within

75 miles.


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Special eligibility rules apply to breaks in service to fulfill National Guard or Reserve military service obligations pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA). See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division or call 1-866-487-9243 for additional information on FMLA.

Question: 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?

Answer: Covered employers must abide by the Family and Medical Leave Act (FMLA) as well as any applicable state FMLA laws. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.

There is currently no federal law covering employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents that have been dismissed from school or child care. However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families. Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

Question: Can an employee stay home under Family and Medical Leave Act (FMLA) leave to avoid getting pandemic influenza?

Answer: The Family and Medical Leave Act (FMLA) protects eligible employees who are incapacitated by a serious health condition, as may be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA. Employers should encourage employees that are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances. See Community Strategy for Pandemic Influenza Mitigation.

The U.S. Department of Labor and other federal agencies 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


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whether any changes are needed. Answers to questions such as this one are based on current laws and regulations.

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

Answer: 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 Family and Medical Leave Act (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, Employment Standards Administration’s 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.

Question: What types of policy options do employers have for preventing abuse of leave?

Answer: Both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act affect the provision of leave.

Under the FMLA, employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. In addition, employers may require employees to provide:

Medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic re-certification;

Second or third medical opinions (at the employer's expense);

Periodic reports during FMLA leave regarding the employee's status and intent to return to work; and


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Consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.)

The FMLA also 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, Employment Standards Administration’s Wage and Hour Division for additional information on the FMLA or call 1-866-487-9243 if you have questions.

Under the Americans with Disabilities Act, qualified individuals with disabilities may be entitled to unscheduled leave, unpaid leave, or modifications to the employer sick leave policies as “reasonable accommodations.” These are modifications or adjustments to jobs, work environments, or workplace polices that enable qualified employees with disabilities to perform the essential functions (i.e., fundamental duties) of their jobs and have equal opportunities to receive the benefits available to employees without disabilities. See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.

RETURN TO WORK Question: 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?

Answer: 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 Family and Medical Leave Act, 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


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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.

LAYOFF/TERMINATION/FIRING Question: Will workers qualify for unemployment if an influenza pandemic hits and their employer has to shut down operations?

Answer: Only the state agency responsible for administering the unemployment insurance (UI) programs in the state can make eligibility determinations. In general, if a worker is laid off due to a shut down caused by an influenza pandemic, the worker would be eligible for UI benefits if the worker meets all other program requirements. For example, the worker must be able to work and available for suitable work. More information is available at: ows.doleta.gov/unemploy/aboutui.asp or by calling the U.S. Department of Labor’s Employment Training Administration at 1-866-4-USA-DOL (1-866-487-2365).

Question: 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?

Answer: 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 Family and Medical Leave Act (FMLA) leave. See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions. In addition, you may not discriminate against an employee because he or she is a past or present member of the United States uniformed service1. See the U.S. Department of Labor, Veterans’


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Employment and Training Service for additional information or call 1-866-889-5627 if you have questions. What if the business has a union contract, does it have to follow the contract’s provisions? Yes. Also note that discharging, laying off, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act. In any case, it is important to prepare a plan of action specific to your workplace, given that an influenza pandemic could affect many employees. It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made at the earliest feasible time.

Question: If an employer lays off employees, will the employees be eligible for unemployment insurance? Will the employer’s unemployment taxes go up?

Answer: The Federal-State Unemployment Insurance (UI) program provides partial wage replacement for individuals who are unemployed due to a lack of suitable work. Unemployment compensation is provided to unemployed workers who meet certain eligibility requirements established by State law and consistent with broad federal law requirements. Requirements include: The worker must meet the State requirements for wages earned or time worked during

an established (one year) period of time referred to as a "base period." (In most States, this is usually the first four out of the last five completed calendar quarters prior to the time that a claim is filed.)

The reason for the separation must not be disqualifying under State law and the worker must meet other eligibility requirements of State law.

It is possible that your unemployment taxes will increase if you lay off workers who, as a result, receive unemployment compensation. Therefore, you should check with your state on specific eligibility requirements and the impact of layoffs on unemployment taxes. We encourage you to proactively prepare a pandemic plan specific to your workplace and to consider options other than a lay off.


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Question: 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?

Answer: We encourage you to proactively prepare a plan specific to your workplace and to consider options other than a lay off, such as telecommuting.

Employers should be sure to comply with the federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, or disability when selecting employees to lay off. Also, employers should consider whether the lay off would disproportionately affect employees of a particular race, color, sex, national origin, disability, or age (40 and over). If so, in some cases, an employer may be required to consider other less discriminatory alternatives. In addition, you may not discriminate against an employee because he or she is a past or present member of the United States uniformed service. See the U.S. Department of Labor, Veterans’ Employment and Training Service for additional information or call 1-866-889-5627 if you have questions.

What if the business has a union contract, does it have to follow the contract’s provisions? Yes. In addition, note that discharging, laying off, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Question: 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?

Answer: It depends. If an employee is covered and eligible under the Family and Medical Leave Act (FMLA) and is needed to care for a spouse, daughter, son, or parent who has a serious health condition, then the employee is entitled to up to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states may have similar family leave laws. In those situations, covered employers must comply with the federal or state provision that provides the greater benefit to their employees. See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.

In lieu of laying off employees in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.

The U.S. Department of Labor and other federal agencies 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


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whether any changes are needed. Answers to questions such as this one are based on current laws and regulations.

What if the business has a union contract, does it have to follow the contract’s provisions?

Yes. Remember that an employer must observe any employment benefit program or plan (including that provided through a collective bargaining agreement) that provides greater family or medical leave rights to employees than the rights established by the FMLA. Conversely, the rights established by the FMLA may not be diminished by any employment benefit program or plan. In addition, discharging, laying off, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Question: 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.)

Answer: Currently, there are no federal laws that address this issue. Some states do have laws that prohibit an employer from terminating an employee who is under order of isolation or quarantine, or has been directed to enter isolation or quarantine.

In lieu of using termination or layoff in this situation, we would encourage you to consider other options such as telecommuting and to prepare a plan of action specific to your workplace.

Question: 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?

Answer: You should consider other options before turning to termination, but any terminations should be consistent with company policy and must be nondiscriminatory.

See the Department of Labor’s Occupational Safety and Health Administration or call 1-800-321-OSHA on workplace safety and health issues.

Question: What notices must be given before an employee is terminated or laid off?

Answer: In certain cases, employers must give the workers advanced notice of mass layoffs or plant closure. The Worker Adjustment and Retraining Notification Act (WARN Act) provides specific information on advance notice, employer responsibility and workers’ rights during mass layoffs or plant closure.

Some states may have requirements for employee notification prior to termination or lay-off.


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SENDING WORKERS HOME Question: 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?

Answer: 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 Family and Medical Leave Act 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, Employment Standards Administration’s 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.


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Question: If organizations have a union contract, do they have to follow the contract’s provisions if they want to send home employees who show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid?

Answer: Yes. You will need to abide by the contract’s provisions, to the extent they do not conflict with federal equal employment opportunity and family and medical leave laws. In addition, discharging, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Question: May employers mandate that 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?

Answer: Yes. Even if an employer believes that individual would pose a direct threat in the workplace due to a disability, the employer would not violate the Americans with Disabilities Act (ADA) if it required a qualified individual with a disability to stay home. A direct threat is a significant risk of substantial harm to safety that cannot be eliminated or reduced by a reasonable accommodation. A determination of direct threat must be based on the most recent and reputable medical information. If a pandemic illness did not rise to the level of a disability, then a decision to require infected employees to stay home would not implicate the ADA.

It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees. 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. Also, remember that any employment decision mandating that certain employees stay home must comply with federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status.

REFUSAL TO WORK Question: 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?

Answer: The circumstances under which employees have a right to refuse to work are very limited. Refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under the Occupational Safety and Health Act (OSH Act). (A union contract or state law may, however, provide for such rights.) Employees may refuse an assignment only if: (1) they reasonably believe that doing the work would put them in serious and immediate


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danger; (2) they have asked their employer to fix the hazard; (3) there is no time to call the Department of Labor’s Occupational Safety and Health Administration (OSHA); and (4) there is no other way to do the job safely. Employees are not protected for simply walking off the job.

An employer can impose disciplinary action for refusing to work. However, employees do have the right to refuse to do a job if they believe in good faith that they are exposed to an imminent danger. "Good faith" means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.

In addition, employers should be aware that an employee’s inability to attend work or perform certain duties could be related to a disability. In this instance, the employer may need to consider the implications of its actions under the Americans with Disabilities Act1 before proceeding. For example, if an employee with a disability could safely perform the essential functions of the job with a reasonable accommodation (e.g. telework, changes in shift times), then an employer would need to provide the accommodation, in lieu of termination, unless it would pose an undue hardship. See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.

We would encourage employers to prepare a plan of action specific to your workplace. As a practical matter, employers will likely want to be flexible regarding attendance during a pandemic. It would also be prudent to notify employees and, if applicable, their bargaining unit representatives about decisions made at the earliest feasible time.

Question: 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?

Answer: Employees have the right to file a complaint and request OSHA to conduct an inspection if they believe serious workplace hazards exist in the workplace.

Section 11(c) of the Occupational Safety and Health Act (OSH Act) prohibits employers from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act, including the right to file a complaint. The OSH Act does not protect a worker who refuses to come to work or perform specific duties when there are no workplace hazards. Employees may refuse an assignment only if: (1) they reasonably believe that doing the work would put them in serious and immediate danger; (2) they have asked their employer to fix the hazard; (3) there is no time to call OSHA; and (4) there is no other way to do the job safely.


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PAY POLICIES Question: An employee was laid off and did not receive his/her last paycheck. What remedies are available?

Answer: Employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment. If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, the employee should contact the U.S. Department of Labor's (DOL) Wage and Hour Division or the state labor department. DOL also has mechanisms in place for the recovery of back wages.

Question: How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?

Answer: The Fair Labor Standards Act (FLSA) generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.

Question: If individuals volunteer to a public agency, are they entitled to compensation?

Answer: Individuals who volunteer their services to a public agency (such as a state, parish, city or county government) in an emergency capacity are not considered employees due compensation under the Fair Labor Standards Act (FLSA) if they:

Perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation. The volunteer performing such service may, however, be paid expenses, reasonable benefits or a nominal fee to perform such services; and,

Offer their services freely and without coercion, direct or implied; and,

Are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.


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Question: If individuals volunteer to a private, not-for-profit organization, are they entitled to compensation?

Answer: Individuals who volunteer their services in an emergency relief capacity to private not-for-profit organizations for civic, religious or humanitarian objectives, without contemplation or receipt of compensation, are not considered employees due compensation under the Fair Labor Standards Act (FLSA). However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.

Where employers are requested to furnish their services, including their employees, in emergency circumstances under Federal, state or local general police powers, the employer’s employees will be considered employees of the government while rendering such services. No hours spent on the disaster relief services are counted as hours worked for the employer under the FLSA.

WORK RESTRICTIONS Question: Can an employee be required to perform work outside of the employee's job description?

Answer: Yes. The Fair Labor Standards Act (FLSA) does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. This is true whether or not the work asked of the employee is listed in the employee's job description.

As part of your pre-pandemic planning, you may want to consult your human resource specialists if you expect to assign employees work outside of their job description during an influenza pandemic. You may also wish to consult bargaining unit representatives if you have a union contract.

Question: How many hours per day or per week can an employee work?

Answer: The Fair Labor Standards Act (FLSA) does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

WORKING AT HOME AND SOCIAL DISTANCING Question: May employers change work hours/schedules to minimize contact between employees?

Answer: Yes, unless your workforce is represented by a labor union and the collective bargaining agreement covers work hours or scheduling policies, or if your workers are covered by other employment contracts that specify work hours and schedules. Note that discharging, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.


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Also, as part of your pre-pandemic planning, you may want to consult with your union about scheduling actions that you might have to make in an emergency situation.

Question: 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?

Answer: 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.

Question: During a pandemic, may an employer require its employees to adopt infection control practices?

Answer: Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA.

Question: May an employer require its employees to wear personal protective equipment (e.g. face masks, gloves, or gowns) designed to reduce the transmission of a pandemic virus?

Answer: Yes. An employer may require employees to wear personal protective equipment. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g. non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these absent undue hardship.


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Question: May employers close lunch rooms and other gathering places to minimize contact between employees?

Answer: Yes, unless your workforce is represented by a labor union and the collective bargaining agreement covers on-site break locations policies, or if your workers are covered by other employment contracts that deal with these issues.

Note that discharging, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Question: May an employer encourage or require employees to telework (e.g. work from an alternative location such as home) as an infection control strategy?

Answer: Yes. An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions. Telework also may be a reasonable accommodation.

Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws.

See generally EEOC Fact Sheet on Work at Home/Telework as a Reasonable Accommodation at http://www.eeoc.gov/facts/telework.html

Question: 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.)?

Answer: Employers may not require employees who are covered by the Fair Labor Standards Act (FLSA) to pay or reimburse the employer for such items that are business expenses of the employer if doing so reduces the employee's earnings below the required minimum wage or overtime compensation. See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.

Employers may not require employees to pay or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act.


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Question: 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?

Answer: Under the Fair Labor Standards Act (FLSA,) employers generally only have to pay employees for the hours they actually work, whether at home or at the employer’s office. However, employers must pay at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.

When not all employees can work from home, we encourage you to consider additional options to promote social distancing, such as staggered work shifts.

Question: Do employers have to pay employees their same hourly rate or salary if they work at home?

Answer: If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.

If this is not the case and you do not have a union contract or other employment contracts, under the Fair Labor Standards Act (FLSA) employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

If the Service Contract Act (SCA) or state or local laws regulating the payment of wages also apply, nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority. See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information on the SCA or call 1-866-487-9243.


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Question: 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?

Answer: The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices. The agency issued a directive in February 2000 stating that the agency will not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA's policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office.

The Fair Labor Standards Act (FLSA) and its implementing regulations do not prevent employers from implementing telework1 or other flexible work arrangements allowing employees to work from home. Employers would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements; and to pay no less than the minimum wage for all hours worked and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek to non-exempt employees.

Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work. Non-exempt employees must receive the required minimum wage and overtime pay free and clear. This means that when a covered employee is required to provide the tools and equipment (e.g. computer, internet connection, facsimile machine, etc.) needed for telework, the cost of providing the tools and equipment may not reduce the employee’s pay below that required by the FLSA. See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.

Under the Americans with Disabilities Act, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship. However, an employer may instead offer alternative accommodations as long as they would be effective. See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.


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RE-EMEMPLOYMENT RIGHTS Question: Do members of the National Disaster Medical System (NDMS) have reemployment rights if they are activated because of a pandemic influenza outbreak?

Answer: Yes. Service in the National Disaster Medical System (NDMS) in response to a public health emergency, as well as authorized training to prepare for such service is considered “service in the uniformed services” and is protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA).

CHILD CARE AT THE WORKPLACE Question: 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?

Answer: Depending on the severity of the pandemic, the Centers for Disease Control and Prevention (CDC) may recommend closing child care, schools, colleges, and universities and recommend other child social distancing measures. Employers should be very cautious about establishing child care centers for employees that have children because this could undermine CDC’s child social distancing recommendations and contribute to the spread of pandemic influenza. Also, bringing children into the workplace may increase the likelihood of the virus entering the workplace and infecting employees. Employers should consider other alternatives such as staggered shifts or teleworking as a first step to enabling families to remain productive at work while caring for one another.

LIABILITY ISSUES Questions: Could an organization be held liable if their employees or customers contract pandemic influenza while working at or visiting its place of business?

Answer: It is possible, especially in cases where you knew about these health concerns and failed to take the appropriate action (i.e., reasonable steps to mitigate the possible affects including instituting social distancing, good hygiene and infection control practices in the workplace). The Department of Labor's Occupational Safety and Health Administration has provided workplace safety and health guidance that will help employers prepare for an influenza pandemic.


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Question: Could employers be held liable if employees are injured while teleworking?

Answer: If employees are injured while teleworking, they are entitled to file a workers’ compensation claim. Adjudication of that claim is based on the relevant State’s statute. It is beneficial to have a telecommuting agreement with employees that addresses the home inspection and health and safety issues and clearly states your responsibility in these matters. A training program and accompanying materials should provide information on how to create a safe workplace in the home. Note that the Department of Labor’s Occupational Safety and Health Administration does not conduct inspections of employees' home offices, will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees.

Question: Can employers close their place of business to employees or customers known to have contracted or to have been exposed to pandemic influenza?

Answer: Yes. An employer may close its facilities to employees or customers known to have contracted or have been exposed to pandemic influenza.

PRE-PANDEMIC WORKPLACE PLANNING Question: 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?

Answer: Communicating good hygiene and infection control practices will help keep your workforce healthy. It is recommended that you share materials that educate employees on the fundamentals of pandemic influenza (e.g. symptoms of influenza, modes of transmission); personal and family response strategies (PDF) (e.g. hand hygiene, coughing/sneezing etiquette, contingency plans); and community and workplace mitigation strategies (e.g. social distancing, provision of infection control supplies). Tools from the Centers for Disease Control and Prevention (CDC) to aid your communication, as well as Occupational Safety and Health Administration’s workplace safety and health guidance are available on Flu.gov. Remind employees of the resources available to them, e.g. Employee Assistance Programs, vendor provided benefit counseling, etc.

Information about your pandemic preparedness and response plan should be distributed to employees. Proactive communication will also help gain employee trust, and prevent employee fear, anxiety, rumors and misinformation. Ensure that your communications are culturally and linguistically appropriate. There are various platforms of communication, and the best ones for your employees will depend upon your business. Hotlines, dedicated Web sites, brochures, posters, and telephone trees are just a few ways to communicate pandemic status and actions to employees in a consistent and timely fashion.


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Also, as part of your pre-pandemic planning, you may want to consult with your bargaining unit representatives if you have a labor union.

Question: What changes should be made, if any, to employee travel and what should be done to ensure employees living abroad are prepared?

Answer: A pandemic will have a global effect and it is essential to ensure the safety of your off-site and international employees. Unessential travel to areas with high transmission rates should be discontinued. Quarantines and border closures need to be evaluated before making decisions about all business-related travel. The starting point in ensuring the safety of employees abroad is to always know where they are and be able to communicate with them to convey health and safety information.

The ability to assist Americans abroad may be limited by restrictions on local and international movement imposed for public health reasons by the U.S. or foreign governments. Communicating to employees abroad about how they can prepare for a pandemic, including information about stocking food, water and medical supplies and understanding their options for accessing medical care, is essential. It is also important to examine the insurance provisions for employees abroad, as well as arrangements for repatriating them.

Question: Should employers encourage employees to obtain seasonal flu vaccines and offer them in the workplace?

Answer: Yes -- although a flu vaccine won't protect against pandemic influenza, flu shots can help individuals stay healthy. Providing employees with educational information on the benefits of flu vaccines and posting this information in the workplace will also serve as a reminder to employees to get their shots. Employers should keep track of annual influenza vaccinations for employees to determine the overall health status of their workforce. Under the Americans with Disabilities Act1 (ADA) employers are required to keep employees’ medical information confidential (i.e., maintained on a separate form and in a separate medical file).

Employers that wish to offer flu vaccinations in the workplace may do so as an employee health program under the ADA. Employee health programs must be offered on a voluntary basis to employees at a particular worksite. Where an employer singles out particular employees for the vaccine outside of an employee health program, the ADA would be implicated. Specifically, an employer would likely need to meet the ADA’s standards to ask many of the pre-requisite medical questions which would accompany the vaccination. Accordingly, before asking any disability-related question (i.e., a question likely to elicit information about a disability), the employer would need to have a reasonable belief, based on objective evidence, that the particular employee has or has been exposed to a medical condition which would impair her ability to


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perform essential job functions (i.e., fundamental job duties) or pose a direct threat (i.e., significant risk of substantial harm) in the workplace.

About RJF Agencies Founded in 1986, privately-held RJF Agencies is one of the “Top 100 Brokers of U.S. Business” according to Business Insurance magazine. Its values-driven approach facilitates growth and strengthens companies by reducing the cost of risk for more than 5,000 corporate clients through five offices in Minnesota and Wisconsin. Its services include employee benefits, commercial insurance, alternative risk programs, loss prevention, claim management, human resource consulting, health management and financial services. In 2009, RJF was awarded the Minnesota Business Ethics Award. More information is available at www.rjfagencies.com.

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Workplace Pandemic