COVID-19 and Leave from Work
The Family Medical Leave Act (FMLA) provides unpaid leave for up to 12 weeks for employees under certain circumstances. To be eligible for FMLA leave, employees must have worked for their employer at least 12 months, must have worked at least 1,250 hours over the past 12 months prior to requesting FMLA leave and must have worked at a location where the company employs 50 or more employees within a 75-mile radius. Leave is available for a multitude of reasons, including (a) to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition or (b) when the employee is unable to work because of a serious health condition.
Is COVID-19 a serious health condition triggering leave requirements under the FMLA?
Given the transmission frequency and significant mortality rate associated with the virus, one would assume that COVID-19 would qualify. The answer, however, is more nuanced:
A “serious health condition” under the FMLA includes (a) an illness requiring an overnight stay in a hospital or other medical care facility or (b) a medical condition that incapacitates an individual for more than three consecutive days and that requires ongoing medical treatment (either multiple appointments with a health care provider or a single appointment and follow-up care). In short, similar to other respiratory illness such as the flu, H1N1 or SARS, if an employee (or a family member) requires an overnight hospital stay or is incapacitated for more than three days because of infection with COVID-19, then the FMLA will potentially be triggered and the employee will be entitled to FMLA leave.
Leave under the FMLA is not required to be paid. An employer’s FMLA leave policy can provide pay for none, some, or all of an employee’s FMLA leave. The policy must be applied to all employees equally. Many employers require an employee to use accrued but unused Paid Time Off (PTO) concurrently with FMLA leave. This prevents an employee from taking, for example, 12 weeks of FMLA leave followed by two weeks of PTO.
What if an employee is officially quarantined because of exposure to an individual with a known positive test for COVID-19 or because they have returned from a country or area with an outbreak?
Because those circumstances are not clearly covered as a serious health condition under the FMLA, employers may wish to modify their PTO and FMLA policies to encourage employees to voluntarily stay home from work if they have been exposed to COVID-19 or if they, or members of their family, are exhibiting symptoms of COVID-19 (fever, cough, or shortness of breath).
Can I modify our PTO policy to allow or require employees to take PTO for mandatory or self-quarantine or child-care reasons?
Many school districts have closed schools, and, as COVID-19 spreads, there will be more quarantines. Further, people may wish to self-quarantine after exposure to COVID-19. The Department of Labor has encouraged employers to “review their leave policies to consider providing increasing flexibilities to their employers and their families…” “…given the potential illness” under some pandemic scenarios. Although a remote work policy might be the best option for some employees, others may be unable to work remotely due to the nature of their work or family circumstances. Generally, an employer can modify leave policies in a non-discriminatory manner and with notice to employees. An employer should review policies and any individual employee contracts, but PTO and other leave policies are typically written in a way that allows for modifications. If an employer’s current policies do not allow it to force employees to use PTO for leave related to COVID-19, it may be able to amend those policies, with advance notice, to require use of PTO before any unpaid leaves of absence. In doing so, the employer must ensure that no accrued, but unused, benefits are eliminated.
Must I require a doctor’s note to return to work?
The CDC has discouraged employers from requiring employees to provide medical certification in order to return to work after leave because of the stress that is anticipated to be placed on our health care system. If an employer insists on such certification, it should encourage its employees to use telemedicine. However, it is not advisable to specifically condition return to work on a negative COVID-19 test. Not enough test kits are available in the United States and individuals are being triaged for risk before being provided a test. There could also be conflict with the Americans with Disability Act (ADA) in a situation where there is objective evidence that an employee’s continued presence at the work place constitutes a “significant risk of a direct threat to the health and safety of others” regardless of the results of the COVID-19 test.
We do not currently have a PTO policy – can I implement one to be used only during the COVID-19 pandemic?
Yes, you can implement a temporary sick and family care leave policy to cover illness, COVID-19 quarantine-related absences, or family leave that is not otherwise covered under another policy. Such policies are encouraged by public health authorities to encourage employees to stay home when ill to curb the spread of illness. Your policy can clearly state that it is being implemented in response to the unprecedented health situation presented by COVID-19 to curb the spread of illness and allow employees to stay at home when they are sick or to care for others. The policy should also state that this time is not an accrued or earned benefit, it is not paid out at termination, and may be changed or discontinued pending future events. If paying for COVID-19 leave would create a hardship, but you still wish to implement a paid leave policy, consider paying less than full pay during this time. Also, because there are often benefits issues, you should check your benefits policies to determine policy requirements.
Is there federal legislation to help?
Last week, the U.S. House of Representatives passed the Emergency Families First Coronavirus Response Act (H.R. 6201) that, if enacted in its current state, would provide expanded FMLA leave with decreased eligibility requirements and partial pay requirements, paid sick leave and family care leave as well as other benefits. If passed, it would take effect 15 days after enactment, would not provide retroactive benefits and would expire Dec. 31, 2020.
Practical Suggestions for Employers
- Communication is key in managing this unprecedented situation. Inform employees that the situation is fluid and that changes in policies will be made in an attempt to appropriately address changes in the environment.
- Continue to monitor CDC, state and local agencies’ advice to update plans and employee communications.
- Implement public health authorities’ recommendations in policies and practices. Ensure workplace concerns are addressed with factual information from reliable sources.
To discuss this or other employment-related issues, contact Sean A. Monson at (801) 536-6714 or send an email to smonson@parsonsbehle.com or call Susan Motschiedler at (801) 536-6923 or send an email to smotschiedler@parsonsbehle.com.
