COVID-19 and the Family Medical Leave Act

As employers continue to conduct business during the COVID-19 outbreak it is to be expected that employees will inquire as to whether the Family Medical Leave Act (“FMLA”) applies to their time out of the office due to (1) their own contraction of COVID-19, or (2) their family members’ contraction of COVID-19. FMLA is considered on a case by case basis. Employers should consult with counsel when an employee provides notice that they wish to take FMLA leave due to COVID-19.

FMLA Overview

Before addressing the above scenarios, it is helpful to first review major FMLA principles. FMLA applies to employers who are engaged in commerce or in an industry or activity that affects commerce, with 50 or more employees. The Act affords eligible employees of a covered employer to take up to 12 weeks of unpaid, job protected leave in a 12 month period. This leave carries a right of reinstatement. While FMLA leave is unpaid, the Act allows employees to be paid during FMLA leave by affording the employee the opportunity to take paid leave (per an employer policy) concurrently with any FMLA leave.

Once it is determined that FMLA applies, the next level of inquiry is whether an employee is eligible. Employees who have been employed for at least 12 months and have worked at least 1,250 hours during the 12 month period preceding the commencement of leave are eligible.

There are specific provisions with respect to employee pay during leave, calculating the number of employees in the company, eligibility of an employee, and form/notice of the employee request. This article is not focused on those specifics and employers should contact counsel to confirm the applicability of the Act.

After confirming that your business is covered by FMLA and that the employee is qualified for leave, the next steps is to determine whether the employee is entitled to such leave. It is worth exploring the following employee scenarios as they relate to the COVID-19 outbreak.

Employee/Employee’s Family Member COVID-19 Diagnosis

If one of your employees, or your employee’s family member is diagnosed with COVID-19, then that employee might be eligible for FMLA leave. The Act outlines 5 reasons for which a qualified employee is entitled to leave, two of which are pertinent to COVID-19.

Covid-19 Diagnosis Is Not Automatically Deemed a Serious Health Condition

Neither the FLMA nor the related regulations have provisions related to pandemics. Federal Regulations specify that the flu is not a serious health condition. The text of the Regulations explains that, “[o]rdinarily, unless complications arise, the common cold, the flu…are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.” The CDC explains that symptoms of COVID-19 mirror that of the flu.

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves:

  • Inpatient care in a hospital, hospice, or residential medical care facility, or

  • Continuing treatment by a health care provider

Thus, the inquiry begins with whether the employee (or the employee’s family member) has a serious health condition .

SITUATION 1: Inpatient COVID-19 Care is Covered

Absence due to an overnight hospitalization because of COVID-19 is covered under the Act. Inpatient care is defined as any overnight stay in the hospital, hospice or residential medical care facility, including any period of incapacity in connection with any subsequent treatment in connection with the inpatient care. So, if an employee or an employee’s family member is diagnosed with COVID-19 which leads to inpatient care, then that employee is entitled to FMLA leave during the time that they are in the hospital.

SITUATION 2: Recovery from Inpatient COVID-19 Care is Covered

The second part of the Inpatient Care definition includes that “any period of incapacity in connection with subsequent treatment in connection with the inpatient care,” is also covered by the Act. Let’s say an employee, or an employee’s family member, is hospitalized for COVID-19, and then released from the hospital. What is covered leave after the hospital stay? What is a “period of incapacity?”

The Regulations define incapacity as an, “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” Per this definition, Leave is afforded to an employee diagnosed with COVID-19 if is results in inpatient care. The Act further allows for the employee to take FMLA leave during the time after the inpatient care for recovery.

SITUATION 3: COVID-19 Testing After Inpatient Care May Be Covered

As explained above, incapacity includes an individual’s inability to attend inter alia work due to treatment for a serious health condition. The Regulations explain that treatment includes, but is not limited to, “examinations to determine if a serious health condition exists and evaluations of the condition.” It follows that an employee is entitled to leave after inpatient care for any examinations that are conducted to establish if the employee has a serious health condition.

Are the post-inpatient examinations and tests for COVID-19 covered under FMLA? This brings us back to the original issue of whether COVID-19 is a serious health condition. If COVID-19 is not a serious health condition, then the absence due to such examination is not covered. However if it is deemed a serious health condition, then it is covered. We know that influenza is not deemed a serious health condition under the law. So where does that leave us?

The World Health Organization (“WHO”) explains that the virus “affects people, older persons and persons with pre-existing medical conditions appear to develop serious illness more often than others.” The CDC furthers that individuals with Heart Disease, Diabetes and Lung Disease are at a higher risk of getting “very sick from [the] illness.” While employers could take the position that virus’ is akin to influenza, employers should anticipate the position that COVID-19 is a serious health condition for some individuals (ie- those with pre-existing conditions).

Thus, if an employee with pre-existing medical condition (ie- Heart Disease, Diabetes, Lung Disease) takes FMLA leave because of inpatient care, due to COVID-19 or something else, then there is a strong case that subsequent absences for examinations/tests to determine if that individual has COVID-19 is covered under FMLA.

SITUATION 4: Employee Who is Diagnosed With COVID-19 But is Not Hospitalized Might Be Covered

If an employee is diagnosed with COVID-19 and is not hospitalized, then FMLA coverage depends on the course of treatment. The second definition of a serious health condition involves an individual who receives continuing treatment by a health care provider. The regulations define such treatment by a healthcare provider to mean, a period of incapacity (inability to work…due to the serious health condition, treatment therefore, or recovery therefrom) of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

  1. Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by a health care provider; or

  2. Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of a health care provider.

The regulations provide and example of a “regimen of continuing treatment” as a course of prescription medications (ie- antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (ie- oxygen). Treatment does not include taking “over-the-counter medications…bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for the purposes of FMLA leave.”

So, if an employee is diagnosed with COVID-19, sees a doctor once, and is given an antibiotic. Then the absence is most likely covered by FMLA.

However, coverage is less clear where an employee is tested for COVID-19, and the a health care provider instructs that individual to rest, drink fluids, and take over the counter medication.

These days it is important for employers to consult counsel with any questions relating to employee issues as they relate to the virus. As you can see, FMLA issues are not cut and dry when it comes to COVID-19.

Susie Cirilli