The U.S. Government has declared a public health emergency in response to the outbreak of swine flu both here and abroad. Employers are urged to have contingency plans in place both to assist in helping to control the spread of the virus, and to manage their business in the event of a widespread outbreak.

But, what about more simple, day-to-day issues? What should you do when an employee reports to work and is known or suspected to have the flu? What should you do if a healthy employee refuses to come to work due to a belief that he would risk catching the flu? What should you do with employees who need to stay home with their children because the schools are closed? What should you do if an employee is needed to care for a family member with the flu? These and other questions need to be addressed quickly and, more importantly, consistently in order to avoid any disparate treatment.

Employers should be careful not to make employment-related decisions based on perceptions of an employee's health or availability during a pandemic. Indeed, even during a pandemic, employers are governed by the federal and state anti-discrimination laws, including the Americans with Disabilities Act ("ADA"). Employers also remain covered by the Family and Medical Leave Act ("FMLA") and relevant state leave laws. Employers must also abide by their obligations under the Fair Labor Standards Act ("FLSA") and state wage and hour laws.

Currently, it is unclear whether the swine flu would rise to the level of a disability under the ADA or if it constitutes a serious health condition under the FMLA. Indeed, that may never be definitively defined and until further notice, it will have to be addressed by employers on a case-by-case basis.

However, for the purposes of developing consistent policies, prudence would dictate that you act as if these laws applied. Prudence would further dictate that you plan and prepare now so, when you are confronted with these issues, you are ready to act. Additionally, prudence requires that you work through these issues and develop pandemic-related HR policies with employment counsel.

Although the questions are many and varied, we offer the following thoughts on some of the more typical issues.

  • Employers should not mandate that otherwise healthy employees leave work or work at home even though there is a pandemic. Panic is not going to help you or your staff.
  • Employers may mandate that employees with flu symptoms go home or work from home (if the work permits) until the symptoms are gone. The reason for this exception is that employees with flu symptoms would pose a direct threat to the health and safety of other employees, especially in light of the pandemic.
  • Employers may mandate that employees taking care of family members with the flu go home or work from home (if the work permits). The reason for this exception is the same as above - these employees pose a direct threat to the health and safety of other employees.
  • Employers may take reasonable steps to distance healthy employees from those employees with the flu, or those employees suspected of having the flu.

Employers are encouraged to be lenient and take reasonable measures, short of termination, when dealing with employees who have the flu, who are suspected of having the flu, or who have to care for a family member with the flu. The more difficult questions will come when employers have to determine if employees are covered by the ADA or the FMLA, thereby requiring that their jobs be protected; if they must be paid for their time off; and whether they are medically able to return to work. Given the many traps for the unwary, consider and outline all the issues, develop a plan, and be consistent.