FMLA Guidance for Employers During COVID-19

The myriad of new legislation passed in response to the novel coronavirus (“COVID-19”) has created a great deal of confusion in this uncertain time for both employers and employees. Many employees, despite being considered an essential worker, are refusing to come to work out of fear of being exposed to COVID-19. This presents a question as to whether these employees may qualify for leave under the Family and Medical Leave Act (“FMLA”).

The Families First Coronavirus Response Act (“FFCRA”) relaxes the requirements for employment leave under the FMLA. The FFCRA creates several provisions that allow an eligible employee who has been affected by COVID-19 to take two weeks of paid leave. These provisions, listed in Section 5102(a), require an employer to provide an employee with paid leave if: (1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns; (3) The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) The employee is caring for an individual who is affected according to subject to subsection (1) or (2); (5) The employee is caring for their child if the school or place of care of the child has been closed, or the child care provider of the child is unavailable due to COVID-19 concerns; or (6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. It should be noted that these requirements do not necessarily apply to employees who are health care providers or emergency responders.

If an employee requests FMLA leave, the reason leave has been requested is crucial in determining eligibility. Although the FFCRA relaxes FMLA leave requirements, the U.S. Department of Labor has stated that an employee does not qualify for FMLA leave simply because he or she wishes to avoid exposure to a pandemic virus. There are no provisions in either the FMLA or the FFCRA that allow for an employee to take paid leave simply for fear of contracting a pandemic virus.

An employee may qualify for FMLA under any of the six above listed provisions, however. It is important to note that although Michigan and several other states are subject to a stay at home order, the stay at home order does not qualify an employee for leave under Section 5102(a)(1) of the FFCRA or any subsection for that matter. In order to qualify for leave under Section 5102(a)(1), an employee must either have or be suspected of having COVID-19. An employee would also qualify for FMLA leave under the first subsection if they had been traveling, and subsequently placed on a government-mandated self-quarantine for a period of time.

Sections (4) and (5) also contain several important nuances for determining employee qualification. Section 5102(a)(4) allows an employee to take leave for the purposes of caring for a person who is affected subject to subsections (1) or (2) discussed above. There are several scenarios that may disqualify an employee from FMLA eligibility under this section. If an employee must care for a person who has been affected by COVID-19, it is likely that person would need to require constant care for the employee to be eligible for FMLA leave. If the person is capable of self-care while the employee is working, or if there is another person able to care for the affected during those hours, it may disqualify the employee from eligibility for leave. For example, if an employee has an elderly parent who has been advised by a health care provider to self-quarantine due to COVID-19 concerns, but is not ill and is otherwise self-dependent, the employee’s duty to care for his or her parent will be limited and should not affect the ability of the employee to work. An example of an employee that would qualify for paid leave would be an employee whose spouse has contracted COVID-19. Not only would the employee likely be advised by medical professionals to self-quarantine, but the employee’s spouse may require constant care depending on the severity of their symptoms.

The same analysis applies for Section 5102(a)(5) which allows an employee to take leave for purposes of caring for his or her child. If there is other available child-care, that will disqualify an employee from being eligible for leave under the FFCRA. Available child-care may be present in the form of a spouse, or other trusted adult, who is able to care for the child during the hours the employee is working. For example, if an employee has a child whose school and ordinary child care provider have been closed due to COVID-19, but the employee has a spouse who is not currently working and is able to care for the child, the employee would not be eligible for FMLA leave.

Although the Families First Coronavirus Response Act creates broadened eligibility for paid leave under the Family and Medical Leave Act, an employee seeking leave in order to avoid the risk of contracting COVID-19, without other reason, does not qualify for leave. If the employee can establish their leave is necessary under a provision of the FFCRA, they may be entitled to leave; however, an employer should be aware of the nuances that may prevent an employee from being eligible under the new eligibility requirements found in the FFCRA.

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