Managing FMLA During COVID-19

The COVID-19 pandemic has created several challenges for employers trying to determine the best way to stay in compliance with Family and Medical Leave Act (FMLA) guidelines.

Employers want to know whether employees can take FMLA if they want to stay home to avoid COVID-19; to recuperate from the disease; or to take care of loved ones. The following answers some of these questions and more.

Q. Which of my employees are eligible to take FMLA leave?
A. First, you only are required to follow FMLA guidelines if you are a covered employer — someone engaged in commerce; and who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding year. If you are a covered employer, your employees are covered under FMLA if they have worked for you for at least 1,250 hours of service over the previous 12 months and work at a location where at least 50 employees are employed by you within 75 miles of each other.

Q. Can an employee use FMLA to stay home to avoid getting COVID-19?
A. FMLA does not protect employees who stay home to avoid exposure to the disease.

Q. Does an employee who has COVID-19 qualify for FMLA?
A. Employees who have a serious health condition are eligible to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include COVID-19 where complications arise that create a serious health condition. According to the Department of Labor, a serious health condition includes any illness that requires inpatient care, three or more days of incapacity, or permanent or long-term conditions that require multiple treatments.

Q. Do FMLA guidelines allow me to require an employee who was out sick with COVID-19 to meet certain criteria before returning to work?
A. Yes. The Americans with Disabilities Act allows an employer during a pandemic to require a doctor’s note, a medical examination, or insist on a time period during which the employee has been symptom free before allowing the employee to return to work. In addition, the employer may do this if they believe the employee’s medical condition would impair his or her ability to perform essential job functions.

Q. Must I grant leave to an employee who is caring for a family member who has COVID-19?
A. FMLA does allow employees to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. These medical reasons can include illnesses where complications arise that create a “serious health condition” as defined by the FMLA.

Q. May employees use FMLA to stay home to take care of their children if there is no school or daycare available?
A. Federal law does not require employers to give FMLA coverage to non-government employees who take off from work to care for healthy children. However, you might want to review your policies and provide increased flexibility during the pandemic.

Q. How quickly must I approve an FMLA request?
A. Employers must provide employees notice of their FMLA eligibility within five days of their request.