As noted elsewhere in this E-Update, the U.S. Department of Labor’s Wage and Hour Division (WHD) has revised its COVID-19 and the Family and Medical Leave Act: Questions and Answers, initially issued in July 2020, to address additional issues of relevance in the context of the continuing pandemic.

As we originally discussed in our July 20, 2020 E-lert, the Family and Medical Leave Act resource reiterates that eligible employees are entitled to FMLA leave for their own or a family member’s serious health condition. Note that COVID-19 does not automatically meet the statutory definition of a serious health condition, however, so employers must make a case-by-case determination as to whether the FMLA applies. With regard to COVID-19, the resource makes the following points of interest (note that state family and medical leave and benefits laws may impose additional requirements):

  • The DOL states that, “Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA.” We note, however, that an employee may, in fact, have an underlying serious health condition that may require them to avoid exposure to COVID-19, and therefore might be entitled to FMLA leave on that basis.
  • Regular FMLA does not apply to care for healthy children who have been dismissed from school or childcare. (FFCRA-covered employers may voluntarily provide up to 14 weeks of paid sick leave and emergency FMLA leave and receive a corresponding tax credit for the COVID-19-related unavailability of a child care provider or the closure of a school/child care facility through September 30, 2021, however, as discussed in our March 12, 2021 E-lert).
  • Employers unable to afford widespread use of sick leave may change their sick leave policies, as long as they are not bound by a collective bargaining or employment agreement, and they comply with applicable sick leave laws and the FMLA (which governs only the usage of available sick leave, but does not require employers to provide paid sick leave).
  • The FMLA requires in-person visits to a doctor to establish a serious health condition and the DOL will consider telemedicine appointments to meet the in-person requirement.
  • An employee returning from FMLA may be required to get a COVID-19 test as long as all employees returning to the office are so required.

The WHD makes the following additional points with regard to the application of FMLA to the COVID-19 pandemic:

  • Apart from any FMLA obligation, WHD encourages employers to be flexible with leave policies, and to consider providing the voluntary FFCRA paid leave benefits and receive the corresponding tax credit, if applicable.
  • Employees who were eligible for but denied mandatory FFCRA leave in 2020 may still file complaints with WHD for up to two years following the violation.
  • WHD confirms that there is no federal law currently and generally mandating paid sick leave for COVID-19 reasons. Government contractors do have paid sick leave obligations that may apply. If the leave qualifies as FMLA leave, employers may require employees to use any existing paid leave concurrently with the FMLA leave. And FFCRA-covered employers may voluntarily provide paid leave and receive a tax credit for those reasons through September 30, 2021.
  • Employers may require employees to provide a doctor’s note, submit to a medical exam, or be symptom-free for a specified period of time before returning to work.
  • Employees can be required to submit a complete and sufficient medical certification to support a request for FMLA leave because of the employee’s own COVID-19 illness or to care for a family member with COVID-19.
  • In selecting employees for layoff, employers must comply with federal laws that prohibit discrimination on the basis of any protected characteristic, as well as the request for or use of FMLA leave.
  • Employees may not be terminated or laid off because they have COVID-19 or are needed to care for ill family members if FMLA applies.