By Tonya A. Jacobs, Baker Hostetler
|If an employee’s child has been diagnosed with the H1N1 virus, it could be considered a “serious health condition” under the Family and Medical Leave Act (FMLA). For example, if the employee’s son or daughter has the virus and the child is admitted to a hospital for treatment or is incapacitated for three or more days and receiving continuing treatment from a health care provider, the “serious health condition” requirement has been met. If that is the case and the employee is needed to care for his or her child, any necessary leave will be covered as long as the employee has met the other FMLA eligibility requirements.
However, if an employee’s child’s school is simply closed because of the threat of H1N1, and his or her child has not been diagnosed with the virus, FMLA would not apply. The fact that the school has closed as a precautionary measure as recommended by federal and/or state public health officials, does not change the analysis—FMLA simply doesn’t apply.
Even if an official quarantine is implemented by federal or state public health officials, FMLA would not apply—unless the employee or his or her child has a “serious health condition.” However, that does not mean that the employee’s job might not be protected. Delaware, Iowa, Kansas, Maine, Maryland, Minnesota, New Mexico and New Jersey have enacted laws protecting an employee’s job if he or she is subject to an official quarantine order. Kansas and Maine protect an employee’s job if he or she is needed to care for an immediate family member who is subject to a quarantine order.
Other states might recognize a “public policy” exception to the employment-at-will doctrine. Depending on the nature of the quarantine order, an employee might be able to argue successfully that complying with such an order should fall within this “public policy” exception.
What should be done now to prepare for future employee absences attributable to H1N1?
First, develop a company contingency plan for any emergency situation where a large part of the workforce could be affected. The Society for Human Resource Management has an online H1N1 Pandemic Checklist here. Plans should include a review of relevant company policies and procedures and how those plans might be used to manage the work force effectively.
For example, does the company have an effective alternative work schedule or work-from-home policy that can be utilized by employees whose families are affected by the H1N1 virus? Determine if and when sick leave, vacation and/or paid-time-off programs can be used by an employee whose children’s school has been closed—and be consistent in allowing or not allowing employees to use this time for this purpose. Check, too, to see if the state has enacted a law that would affect the ability to discipline or terminate an employee for complying with a quarantine (or other similar emergency) order.
Ultimately, the best thing that employers can do now is keep a line of communication with employees open. Working together, employers and employees can come up with creative solutions to manage the needs of the business and the family in the face of an emergency situation like an H1N1 flu pandemic.
Tonya A. Jacobs is a partner in the Labor and Employment Group in Baker Hostetler's Houston office. She can be contacted at: firstname.lastname@example.org.
Dealing with H1N1 in the Workplace: What Managers Should Know, Templates and Tools, September 2009
Sample Severe Influenza Pandemic Policy, SHRM Legal Issues, September 2009
Some Employers Require Doctors’ Notes for H1N1 Flu Despite CDC Recommendation, SHRM Legal Issues, October 2009