FMLA Implications of the COVID-19 Pandemic

Employers should be sure to consult their union contracts, individual employment agreements, government contracts, and local law for any apposite requirements or prohibitions.

Must employers grant FMLA leave to employees who are ill or who are caring for an ill family member?

It depends. The FMLA entitles a covered employee to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month period because the employee is incapacitated due to a serious health condition or because the employee must care for a covered family member who is incapacitated due to a serious health condition. Whether COVID-19 constitutes a serious health condition under the FMLA will depend upon how it affects the individual who contracts it.

May employees take FMLA leave to stay home so as to avoid getting ill?

No. The FMLA protects eligible employees who are incapacitated due to a serious health condition or because the employee must care for a covered family member who is incapacitated by a serious health condition. The statute does not protect employees who take time off to avoid exposing themselves to COVID-19. Still, the Wage and Hour Division encourages employers to encourage ill employees and those who have been exposed to COVID-19 to remain at home and consider adopting flexible leave policies for those circumstances.

May parents and other caregivers take FMLA leave to care for children whose school or childcare facility has closed?

At present, the answer is “no.” The FMLA does not currently apply to private employees who take off from work to care for healthy children whose schools have closed. Here again, however, the Wage and Hour Division encourages employers to be flexible.

Beyond that, President Trump yesterday signed into law a bill that would amend the FMLA to require employers with 499 employees or fewer to give those who have been with the employer for at least 30 days, twelve weeks of leave if the employee is unable to work or telework because the employee needs to care for his or her child, age 17 or younger because the child’s school or place of care closes due to a declared COVID-19-related public health emergency. Employers with 49 or fewer employees may request an exemption if providing the leave would jeopardize the business as a going concern. The employee’s first ten days of emergency FMLA leave would be unpaid, but the employee may draw upon accrued vacation and other leave benefits. The remaining leave must be paid; at least two-thirds of the employee’s regular pay and reflecting the number of hours that the employee would otherwise normally be scheduled to work. Under the bill, the paid leave shall not exceed $200 per day and $10,000 in the aggregate per employee.

Read Arent Fox’s analysis of the new legislation here.

Under the FMLA, must employers pay employees who are incapacitated due to COVID-19 or who must care for an incapacitated family member?

The FMLA does not mandate paid leave. Employees may, however, use their accrued leave benefits to pay for their FMLA time off.

Also, under Executive Order 13706, some federal contractors may have to provide paid leave to employees if the employee is absent due to illness or to care for an ill family member.

And, the recently-signed bill would require employers with fewer than 500 employees to immediately give them two weeks of paid emergency leave if they are unable to work or telework because:

1. They are subject to a federal, state, or local quarantine or isolation order;
2. A healthcare provider has advised them to self-quarantine;
3. They are seeking a medical diagnosis related to COVID-19 symptoms;
4. They are caring for an individual to whom the first two reasons apply;
5. They are caring for a child whose school or place of care has closed due to COVID-19 precautions; or
6. They are experiencing substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretaries of Labor and the Treasury.

Per employee, paid sick leave, under the law, shall not exceed $511 per day and $5,110 in the aggregate for uses described in points 1-3, and $200 per day and $2,000 in the aggregate for uses described in points 4-6.

Again, read Arent Fox’s analysis of the new legislation here.

May an employer require an employee who is out sick due to COVID-19 to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?

Yes. For FMLA-covered leave, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Employers must notify employees in advance if the employer will require a fitness-for-duty certification to return to work.

The Wage and Hour Division points out, however, that during a pandemic, healthcare resources may be overwhelmed, making it difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious. So, here again, the Division encourages employers to be flexible.

May employers change their paid sick leave policy if the employers cannot afford to pay everyone who is out due to illness?

Yes, so long as employers don’t discriminate against employees based on race, sex, age (40 and over), color, religion, national origin, disability, veteran status or any other basis prohibited by applicable law. Keep in mind, however, that the new legislation would set the floor below from which covered employer, unless exempted, could not depart.

How can employers reduce the risk of leave abuse?

Under the FMLA, employees seeking to use FMLA leave must provide 30-days advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. Also, employers may require employees to provide:

• Medical certification supporting the need for leave, including periodic recertification;
• Second or third medical opinions (at the employer’s expense);
• Periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
• Consistent with a uniformly-applied policy or practice for similarly-situated employees, fitness for duty certification. 

But, remember, some of those requirements may be impracticable if, as some public health officials anticipate, the COVID-19 pandemic overwhelms healthcare providers.

This is part of a series of Alerts that address the employment and labor issues implicated by the COVID-19 pandemic. A link to Arent Fox’s Coronavirus Task Force is here.