The U.S. Department of Labor’s (DOL) Wage and Hour Division recently added FAQs which clarify when the federal Family and Medical Leave Act (FMLA) may apply to absences related to COVID-19.
Where an employer offers paid leave under the Families First Coronavirus Response Act (FFCRA), an employee may be eligible for paid leave as well as federal FMLA. In cases that an employer does not provide FFCRA, an employee’s leave of absence related to COVID-19 may still be eligible for unpaid, job protected leave under FMLA.
Families First Coronavirus Response Act (FFCRA)
The American Rescue Plan extended tax credits for employers who voluntarily provide FFCRA leave benefits through September 30, 2021. Employers with fewer than 500 employees may choose to offer employees paid leave under FFCRA for COVID-19 related absences which occur April 1, 2021 through September 30, 2021. Under the Emergency Paid Sick Leave Act, employees are immediately eligible to take a qualifying leave. Under the Emergency Family and Medical Leave Expansion, employees must have been employed by the employer for at least 30 calendar days to be eligible.
Qualifying reasons for leave under FFCRA include:
- Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19
- Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
- Employee is experiencing symptoms of COVID-19 and is seeking a diagnosis
- Employee is seeking or awaiting the result of a diagnostic test for, or a medical diagnosis of, COVID-19 and such employee has been exposed to COVID-19
- Employee’s employer has requested such test or diagnosis
- Employee is obtaining immunization related to COVID-19
- Employee is recovering from injury, disability, illness, or condition related to the COVID-19 immunization
- Employee is caring for an individual who is subject to quarantine by a federal, state or local order or was advised by a health care provider to self-quarantine
- Employee is caring for a son or daughter of such employee if the school or place of care has been closed or if the child care provider is unavailable due to COVID-19 precautions
- Employee is experiencing any other substantially similar condition specified by HHS in consultation with the Secretary of Treasury and the Secretary of Labor
Family and Medical Leave Act (FMLA)
Employees who work for an employer subject to FMLA and who are eligible to take FMLA, may be eligible to take unpaid, job protected leave for COVID-19 reasons. An eligible employee is entitled to up to 12 weeks of unpaid, job protected leave during a 12 month period. Here are some key definitions for COVID-19 related FMLA leave eligibility:
Employers Subject to FMLA
- Private sector employers that employ 50 or more employees in 20 or more work weeks in the current or preceding calendar year, and
- All public agencies (state or local government) and local education agencies (schools) regardless of the number of employees they employ.
Employee Eligible for FMLA
- Works for a covered employer,
- Has worked for the employer for a total of 12 months (need not be consecutive, look back seven years),
- Has worked for the employer for at least 1,250 hours during the previous 12 months, and
- Works at location where the employer has at least 50 employees within a 75 mile radius.
Qualifying Leaves Under FMLA
- Employee is sick with COVID-19
- Employee is caring for a family member (spouse, daughter, son or parent) who is sick with COVID-19
Absences Not Eligible Under FMLA
- Employee stays home to avoid getting COVID-19
- Employee stays home to care for a healthy child whose school is closed or whose daycare provider is unavailable due to COVID-19
The FAQ’s clarify that telemedicine visits qualify as treatment for purposes of determining the existence of a serious health condition, which requires that the employee be under the care of a physician. Employers may require a doctor’s note before permitting an employee to return to work after a COVID-19 related absence.
To view the complete list of FAQ’s, please visit the DOL’s site here.
Key Takeaways
Employers not offering COVID-19 related leave allowed under the FFCRA should continue to evaluate absences to make sure they remain compliant with the FMLA. Employers with questions would be well-served by reviewing individual circumstances with their legal counsel and human resource experts.
