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DOL Answers FMLA Questions Related To Pandemic Flu

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In light of the H1N1 pandemic flu virus, the Department of Labor (DOL) has released question-and-answer guidance on leave issues under the Family and Medical Leave Act (FMLA).

 

Are employees entitled to take FMLA leave if they have the flu or if a family member has the flu?

 

Yes, if complications arise that create a serious health condition as defined by the law.

 

Can employees use FMLA leave to stay home to avoid getting the flu?

 

No.  The FMLA is intended for employees who are incapacitated by a serious health condition or who are caring for a family member who is incapacitated by a serious health condition.

 

Can employees use FMLA leave to take care of children whose school or day care has shut down due to pandemic influenza?

 

No.  The FMLA is intended for employees who are incapacitated by a serious health condition or who are caring for a family member who is incapacitated by a serious health condition.

 

Can employers send employees home if they show symptoms of pandemic influenza?

 

Yes.  Employers are allowed to send employees home, prevent employees from coming to work, or require employees to take sick leave if they show symptoms of pandemic influenza.  Employers should follow their sick leave policies and ensure that their employment decisions do not violate anti-discrimination laws.

 

Can employers require employees who are out sick with pandemic influenza to provide a doctor's note, submit to a medical exam, or remain symptom-free for a specific amount of time before returning to work?

 

Yes.  Under the FMLA, requiring return-to-work medical certification is allowed if the employer has a consistent policy of requiring similarly situated employees to present certification verifying the employee's ability to return to work.

 

These actions also would not violate the Americans with Disabilities Act (ADA) if the employer has a reasonable belief that the employee's ability to perform essential job functions, with or without reasonable accommodation, is impaired, or that the employee poses a direct safety threat.

 

However, the DOL warns that during a pandemic, health care resources may be overwhelmed, and it may be difficult for employees to get appointments with their health care provider to verify they are well or no longer contagious.  The Equal Employment Opportunity Commission (EEOC) suggests accepting a form, stamp, or e-mail from a local clinic that certifies that the employee does not have the pandemic virus.

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