Human Resources (HR) Publications

Using FMLA leave to avoid contracting COVID-19?

By: Darlene Clabault

Publication: Employment Law & Regulatory Alert

Date Posted: May 13, 2020

If a company does not need to comply with the Families First Coronavirus Response Act (FFCRA) due to having more than 500 employees, may an employee with an underlying condition take classic Family and Medical Leave Act (FMLA) leave because a doctor advises her to self-quarantine?

An employee is entitled to regular FMLA leave for his or her own condition only if that condition rises to the level of a serious health condition (see the sidebar below for more information). Generally, employees are not entitled to FMLA leave to prevent contracting a serious health condition.

If an employee’s underlying condition renders the employee incapacitated to the point he or she is unable to perform the job, then it might be a serious health condition for purposes of the FMLA, and the employee could be entitled to take FMLA leave (assuming he or she otherwise meets the eligibility criteria). In that situation, you may request a certification supporting the need for the leave.

Keep in mind, however, that employees could have a hard time obtaining a certification from a healthcare provider, given the current burden the healthcare industry is experiencing. Employees generally have 15 days to provide a requested certification, absent extenuating circumstances; however, a pandemic is certainly an extenuating circumstance.

Even if an employee is not entitled to FMLA leave, he or she might have protections under the Americans with Disabilities Act (ADA).

Generally, when an employee requests a workplace change (such as time off) due to a medical condition, employers must engage in an interactive process with the employee, with a focus on identifying an effective accommodation.

If, for example, a job may only be performed at the workplace, there may be reasonable accommodations for individuals with disabilities that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19.

Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer, like:

• Temporary job restructuring,
• Temporary transfer to a different position, or
• Modifying a schedule or shift assignment.

Some employees may think that the new employee leave provisions of the FFCRA somehow extend into the FMLA. In some ways they do, but not in all situations. It’s up to employers to understand the difference.

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