COVID-19 and the Family and Medical Leave Act

The United States has seen a massive surge of confirmed COVID-19 cases over the past few months. According to worldometers, there are now over 10.3 million cases in the United States and this number continues to grow every day. At the current rate, there are roughly 75,000 new cases every day and this number is projected to increase over the next few months.

As the number of cases grows, so will the number of employees that are seeking some form of job protection under the Family and Medical Leave Act, or FMLA for short. It is important for employers to understand what FMLA is and how it affects their business in order to prepare for future challenges that you may face.

What is FMLA?

FMLA is a federal law that guarantees employees up to 12 weeks of unpaid job protection when they’re facing specific family or medical reasons. This means they can take leave when they personally have a serious medical condition or if they need to take care of a family member.

Due to the dangers of COVID-19, it is expected that many employees may utilize the FMLA to protect themselves and their family members.

What is considered a serious condition?

A serious condition in this context has a very broad definition. It can be defined as an illness, impairment, impairment, or injury that involves inpatient care or prolonged treatment in a hospital or by a healthcare provider. It can also include mental conditions that require some form of long-term treatment.

Is COVID-19 considered a serious health condition?

Symptoms of COVID-19 have been described as being “flu-like”. This does not immediately count COVID-19 as a serious health condition, but it can exacerbate pre-existing symptoms so eligibility for FMLA will depend on the employee’s circumstances.

However, given the uncertainties around COVID-19, employers should err on the side of caution. An employee that has been tested positive for COVID-19, or if they are responsible for caring for a family member with COVID-19, should be permitted to use the FMLA.

Does the FMLA apply to all employers?

No. The FMLA only applies to employers that meet certain criteria:

• Public agency employers such as local, state or Federal government agencies. There is no limit to the number of employees you employ.

• A public or private elementary or secondary school. Again, there is no limit on the number of employees you employ.

• A private-sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year. This also includes a joint employer or successor in interest to a covered employer.

If you do not meet any of these criteria then the FMLA will not apply to you.

Which employees are eligible to take FMLA leave?

Employees must meet certain criteria before they are entitled to take FMLA leave:

• Must work for a covered employer.

• Must have worked for the employer for a minimum of 12 months.

• Has worked at least a total of 1,250 hours during the 12 month period immediately preceding the leave.

• Works at a location where the employer has at least 50 employees within 75 miles.

An employee must meet all of these conditions to be entitled to FMLA leave.

For more details on eligibility and leave entitlement, please visit the Fact Sheet #28: The Family and Medical Leave Act page on the U.S. Department of Labor website.

Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?

Assuming both the employer and employee meet the criteria to be entitled to FMLA, it is unlawful for an employer to interfere with, restrain or deny the exercise of or the attempt to exercise any right provided by the FMLA. Employers must not discharge or discriminate against individuals for opposing any practice, or because of involvement in any proceeding, related to the FMLA.

Can an employee stay home under FMLA leave to avoid getting COVID-19?

Employees that do not want to come to work out of fear of contracting COVID-19 are not qualified for FMLA leave. However, extenuating circumstances may warrant consideration given the uncertainties surrounding COVID-19.

May employers send employees home if they show symptoms of COVID-19?

It is the employer’s responsibility to have a specific plan of action in place should COVID-19 start affecting their employees. This plan must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), colour, religion, national origin, disability or veteran status. It is also the employer’s responsibility to notify employees about these decisions.

Employers may also prevent employees from coming to work if they are showing COVID-19 symptoms. However, decisions must be based purely on their medical condition. You must not discriminate based on outside factors such as the employee’s race, sex, age and so forth.

Do employers need to pay employees that are at home due to COVID-19?

Typically, the FMLA does not entitle employees to sick pay unless it is defined by the company’s sick leave policies. Some federal contractors may be required to provide paid leave to employees facing certain circumstances. This can include taking care of a friend or family member that is sick with COVID-19. Requirements differ based on state or local laws, so each situation should be independently considered by employers when determining eligibility for paid sick leave.

However, the Families First Coronavirus Response Act (FFCRA or Act) requires some employers to provide employees with paid sick leave or expanded family and medical leave for specific reasons related to COVID-19.

Typically, the Act will provide employees of covered employers with:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work due to quarantine (ordered on a Federal, State or local government order or by the advice of a health care provider) and/or if they are experiencing COVID-19 symptoms and seeking a medical diagnosis.

• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where they are unable to work due to the need to care for an individual subject to quarantine, to care for a child whose school or child care provider is unavailable, and/or if the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services.

• An additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if an employee, who has been employed for at least 30 calendar days, is unable to work due to the need to care for a child whose school or child care provider is closed or unavailable due to COVID-19.

Most employees will be able to claim paid sick leave due to COVID-19 under the FFCRA, but small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school or child care unavailability if the leave requirements would jeopardize the business.

Employers may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

For more information, please visit the Families First Coronavirus Response Act: Employee Paid Leave Rights page on the U.S. Department of Labor website.

Adapting your workplace inform employees about COVID-19

It is also the employer’s responsibility to inform and educate their staff on COVID-19 symptoms and general practices to protect the workplace from infection. This may require the employer to print healthcare resources and place them throughout the workplace.

Employers may also want to educate their staff on the FMLA and how it works. Employees should have the option to take FMLA leave if they meet the criteria and are considered eligible candidates. You may want to direct employees to the resources provided on this page, or to the Department of Labor website for technical definitions surrounding the FMLA and FFCRA.

Further questions regarding COVID-19 and the FMLA

If you have specific questions regarding COVID-19 and the FMLA then they may have been answered on the COVID-19 and the Family and Medical Leave Act Questions and Answers page of the U.S. Department of Labor website. The page contains 13 detailed questions and answers for situations that employers and employees may find themselves in.

However, if this does not answer your questions, you may want to consider contacting the Wage and Hour Division or Department of Labor for further information.