If an employer temporarily closes his or her place of business because of an influenza pandemic and chooses to lay off some but not all employees, are there any federal laws that would govern this decision?
Category: Human Resource Policies and Pandemic Planning Workplace Questions
Sub-Category: Layoff/Termination/Firing
Answer:
The federal laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, or disability may apply. (See the U.S. Equal Employment Opportunity Commission (EEOC) or call 1-800-669-4000 if you have questions.) Other specific Federal laws that prohibit discrimination on these or additional bases may also govern if an employer is a Federal contractor or a recipient of Federal financial assistance.
You may also not discriminate against an employee because the employee has requested or used qualifying Family and Medical Leave Act (FMLA) leave. (See the U.S. Department of Labor, Employment Standards Administration’s Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)
In addition, you may not discriminate against an employee because he or she is a past or present member of the United States uniformed service1. (See the U.S. Department of Labor, Veterans’ Employment and Training Service for additional information or call 1-866-889-5627 if you have questions.)
What if the business has a union contract, does it have to follow the contract’s provisions?
Yes. Also note that discharging, laying off, demoting, assigning to a less desirable shift or job, or withholding benefits on the basis of union-related activity is prohibited under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.
In any case, it is important to prepare a plan of action specific to your workplace, given that an influenza pandemic could affect many employees. It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made at the earliest feasible time.
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1“Members of the uniformed service” include persons who perform duty, voluntarily or involuntarily, in the uniformed services, which include the Army, Navy, Marine Corps, Air Force, Coast Guard, National Guard, and Public Health Service, as well as the reserve components of each of these services.
Note: As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.
Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.
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Last Updated: 01/24/2008
