On November 6, 2009, the Department of Labor’s Wage and Hour Division published new guidance in the form of “Question and Answer” documents for both the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) relating to the Pandemic Flu. The documents provide information on common issues when employees get the flu and its affect on wages and hours worked and its affect on wages and hours and job-protected leave.
The guidance document pertaining to the Pandemic Flu and the FLSA can be found here. Within the guidance document, the DOL addresses common questions that arise concerning pay when an employee is required to or encourage to work from home.
The guidance document pertaining to the Pandemic Flu and the FMLA can be found here. Importantly, the guidance document states that since the FMLA provides for leave related to 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.” Nevertheless, the DOL also states that the guidance is based on current law, and that it is reviewing whether to change regulations that may affect employers and employees “during the unique circumstance where the U.S. experiences a severe influenza pandemic.”
As I described on November 12th, there is currently legislation seeking to mandate paid leave for employees out due to influenza. I’ll keep you posted on further developments.