From March 6 to March 8, the United States reported more than 500 confirmed cases of novel coronavirus (COVID-19), spanning at least 34 states. As the number of cases continues to grow, so will the number of employees seeking job protection under the Federal Medical Leave Act (FMLA).

What is the FMLA?

At a very high level, the FMLA is a federal law that guarantees up to 12 weeks of unpaid job protection for certain eligible employees dealing with their own serious health condition, or taking care of a qualifying family member with a serious health condition.

A serious health condition is broadly defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

FMLA eligibility requires the following criteria:

  • The employee must have been employed with the company for 12 months
  • The employee must have worked at least 1,250 hours during the 12 months prior to the start of an FMLA leave
  • The employer employs 50 or more employees within a 75-mile radius of the worksite

Is COVID-19 a serious health condition?

Although symptoms of COVID-19 have been reported as “flu-like,” the virus may be considered a serious health condition depending on the circumstances.

Under the FMLA, a regimen of continuing treatment that includes the taking of over-the-counter medications, such as aspirin, antihistamines, or salves; or 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 purposes of FMLA leave. This definition covers most colds, flus, and other viruses that, while unpleasant and inconvenient, are generally short-lived and do not pose a significant health risk to the general population. However, given the uncertainties concerning COVID-19, employers should err on the side of treating actual or possible COVID-19 absences as qualifying health events, even absent complications or other extenuating circumstances.

An employee diagnosed with COVID-19, or responsible for caring for a qualifying family member with COVID-19, also should be permitted to use FMLA leave.

Employers may request appropriate medical documentation, but should bear in mind that such documentation may be delayed as the strain on the healthcare system increases.

Is fear of contracting COVID-19 covered by FMLA?

Employees who refuse to come to work out of fear of contracting COVID-19 will not typically qualify for FMLA leave.

Will the “serious health condition” assessment be the same for all employees?

While employers should consider erring on the side of granting leave, employees with a separate underlying heath condition that may place the employee at a higher risk of contracting COVID-19 present a special case. Such employees more likely qualify for FMLA protection in certain circumstances.

Additionally, employers may consider extending FMLA leave to these employees if they express concern about being present in the workplace under appropriate circumstances. These situations should be examined on a case-by-case basis, giving significant deference to the employee’s medical provider.

How much advance notice is required for a COVID-19 absence?

In the case of a COVID-19 diagnosis, it is likely that employees will be unable to provide any advance notice. Affected employees must give as much notice as practical, usually the same or next business day after the employee learns of the need for leave. At this time, employers should strongly consider relaxing their notice requirement policies to encourage self-care, containment, and reporting by employees.

What are the employer’s notice obligations?

As soon as an employer becomes aware of an employee’s serious health condition – COVID-19 or otherwise – the employer must provide the employee with a written notice concerning their eligibility for FMLA leave and the employee’s responsibilities regarding use of that leave. Employers must also inform employees whether the leave will be designated as FMLA leave and the amount of leave that will be deduced from the employee’s FMLA entitlement. If the amount of leave is uncertain, the employee can request a written statement of how much leave has been counted against their entitlement every 30 days.

Are employers required to provide paid leave for COVID-19?

The FMLA does not required paid leave.* As with any FMLA covered event, employers should abide by their FMLA policies. Because containment is critical to controlling COVID-19, employers should heavily consider allowing paid leave for any employee diagnosed with COVID-19, or responsible for caring for a qualifying family member with COVID-19, so as to encourage employees to abide by the quarantine recommendations without fear of losing pay. Employers should also provide employees with information needed to apply for short-term disability benefits where available.

When applying this guidance or any of our other COVID-19 guidance published to date, employers should take care to balance legal compliance, policy enforcement, business necessity, and employee well-being. The FMLA represents a minimum standard. Additionally, state analogues to the FMLA may require paid leave or extend coverage to other COVID-19-related events, such as school closures. We anticipate publishing additional guidance on state and local paid leave issues shortly.