Should the a pandemic flu like the H1N1 virus strike at your workplace, which absences can be unpaid under the Family and Medical Leave Act (FMLA)? The answer in some circumstances may surprise you.

A new fact sheet from the Department of Labor (DOL) spells out some important guidelines:

1. Leave taken by an employee who wants to avoid exposure to the flu isn’t protected under the FMLA. Employers should encourage people who 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.

2. When schools are closed because of pandemic influenza, parents who must stay home to care for their healthy children aren’t covered by FMLA. There’s no federal law covering employees who take off from work to care for healthy children. Employers aren’t required by federal law to provide leave to those caring for healthy dependents who’ve been dismissed from school or child care. That said, given the potential for significant illness, employers should review their leave policies to consider providing increased flexibility to their employees and their families. (Remember, though, federal law says flexible leave policies can’t discriminate because of race, color, sex, national origin, retaliation, age, disability or veteran status. Policies must be applied equally.)

3. If employees can’t come to work because they have to take care of sick family members, in limited instances employers may be able to lay them off. If a worker is covered and eligible under the FMLA and has to care for a family member with a serious health condition, then he or she is entitled to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states have similar family leave laws. However, people can be laid off if they’re not covered and eligible for FMLA leave – but the DOL encourages employers to:

a. consider other options, such as telecommuting, and

b. prepare an action plan specific to that particular workplace.

4. If a company sets a policy requiring employees to go home sick when they show symptoms of pandemic influenza, that time off could qualify as FMLA-protected leave. It’s important to set an action plan specific to your workplace – including giving the firm permission to send employees home. (Just be sure the policies aren’t discriminatory). This required leave would be covered under the FMLA if employees work for a covered employer and they’ve:

a. worked for the company for at least 12 months

b. worked for at least 1,250 hours over the previous 12 months, and

c. work at a location where at least 50 employees are employed by the firm within 75 miles.

Tags: Family and Medical Leave Act, flu, FMLA, h1n1