Employers Need To Remember Their FMLA Obligations When Faced With Absences Due To Swine Flu

Happy Halloween!

While trick-or-treating with my children tonight, I saw several people dressed as the swine flu, replete with pig noses, bathrobes, and TAMIFLU.  Swine flu, or more accurately the H1N1 virus, has certainly captured the nation's attention.  Recently, President Obama declared the H1N1 flu outbreak a national emergency.  Despite this, swine flu vaccine is still in short supply, and the number of H1N1 flu cases is expected to rise.

Many employers have implemented H1N1 preparedness plans that require their employees to stay home if the employees or their family members have the H1N1 virus.  Employers need to ensure that they remember their obligations under the FMLA when requiring, or granting, leave time in connection with the H1N1 virus.  Earlier this year, I discussed in a post whether swine flu cases qualify for FMLA leave.  If an employee or an employee's family member with the H1N1 virus has a serious health condition within the meaning of the FMLA, and the employee otherwise qualifies for FMLA leave, covered employers need to ensure that they provide the employee with the required FMLA notices, make available up to 12 weeks of FMLA leave, reinstate the employee at the conclusion of the leave, and avoid retaliation.  In addition, employers should ensure that their  H1N1 preparedness plans provide that any leave due to swine flu runs concurrently with FMLA leave for qualifying employees.