Coronavirus (COVID-19) and Employee Leave

To help curb the spread of COVID-19, the CDC encourages sick workers to stay home and asks that you, as an employer, support those efforts. For many employees, however, staying home could pose some challenges. According to the U.S. Department of Labor’s Bureau of Labor Statistics, in March 2018, 17 percent of all civilian workers had access to paid family leave, 89 percent had access to unpaid family leave, and 71 percent of workers in private industry had paid sick leave benefits. The amount of paid sick leave generally fell between six and 10 days.

To help with the CDC’s efforts, you should review your current leave policies and try to be flexible. For example, not requiring doctor's notes can help avoid some issues. Also allowing employees to stay home to take care of others can also help lessen the spread.

You may mandate that employees stay home and taking steps to incentivize this can help prevent an employee from bringing the disease into the workplace.

Employees could be entitled to workers’ compensation benefits should they contract COVID-19 during the course of employment.

FMLA Leave

Currently, in order for an employee to take FMLA leave, the reason would need to be a qualifying one. This includes the following:

  • Because of the employee’s own serious health condition that makes the employee unable to perform his or her job,
  • To care for a family member with a serious health condition that makes the family member unable to perform usual daily activities.
  • Because of the birth of a child and to bond with the child.
  • For the placement of a child through adoption or foster care, and to bond with the child.
  • For a qualifying exigency related to a family member’s military service.
  • To care for a family member with a military-related serious injury or illness.

If an employee is forced to stay home as a precautionary measure, but the employee does not have a serious health condition, nor does a family member, the absence would not be FMLA leave.

FMLA serious health condition

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

Inpatient care is generally an overnight stay in a health care facility.

Continuing treatment is a bit more involved, however. Please note that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.

A serious health condition involving continuing treatment includes the following:

  • A period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves -
    • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
    • Treatment at least once, resulting in a regimen of continuing treatment.
  • Any period of incapacity due to pregnancy or for prenatal care.
  • Any period of incapacity (or treatment for) a chronic serious health condition requiring treatments at least twice per year and continuing over an extended period of time. These may cause episodic rather than continuing periods of incapacity.
  • A period of incapacity for a permanent or long-term condition in which treatment may not be effective.
  • Any period of absence to receive multiple treatments (i.e., chemotherapy, radiation, physical therapy, dialysis), for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of treatment.

Obviously, not all parts of the definition would apply to a particular situation. For COVID-19 purposes, the employee or a family member would need to have a serious health condition. Absences imposed as a precautionary measure might not involve a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA.

COVID-19 could, however, be a serious health condition if it meets one part of the definition.

Currently, there is no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required by federal law (including the FMLA) to provide leave to employees caring for dependents who have been dismissed from school or childcare. If, however, a child or other family member has a serious health condition, the employee would be entitled to FMLA leave to care for that family member.

FMLA certification

Usually, employers may require that employees provide a certification supporting the need for FMLA leave. Given the situation, employees will likely be hard pressed to obtain one. Many doctors will not see patients unless the situation is very serious.

Under the FMLA, employees have 15 days to provide a requested certification, unless not practicable due to extenuating circumstances. The situation is certainly an extenuating circumstance. The health care industry is asking that patients stay home unless absolutely necessary; obtaining an FMLA certification is likely not absolutely necessary.

Again, this is where flexibility comes into play.

Use of paid time off

While the FMLA provides for unpaid, job-protected leave, employees have the right to use accrued paid time off for otherwise unpaid FMLA leave. You may also require that employees use their accrued paid time off.

Reinstatement

At the end of leave, employees are entitled to be reinstated to their position or an equivalent one. This right, however, is not absolute. If an employee, for example, is laid off during he course of taking FMLA leave, and employment is terminated, your responsibility to restore the employee ceases at the time the employee is laid off. You would, however, need to be able to prove that an employee would have been laid off and, therefore, not reinstated.

Generally, when an employee takes leave for his or her own serious health condition, you may require the employee to provide a fitness-for-duty certification before returning from leave. If the healthcare industry is inundated, however, this might pose a challenge. Perhaps some form of documentation indicating that the employee is no longer contagious would do, but how employees would obtain such documentation remains a question.

State Leave Laws

Many states have laws that entitle employees to leave above and beyond that provided by the federal FMLA. Therefore, you need to ensure you are aware of and follow those provisions as well. Some states (and some municipalities) are enacting laws, perhaps temporarily, entitling leave as a result of the COVID-19 outbreak. Again, you need to be aware of these changes.

Leave Policies

This is where you can, and should, be flexible. Given the potential for significant illness under some pandemic scenarios, you should review you leave policies to consider providing increased flexibility to their employees and their families. Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

If you currently have a paid leave policy, and a number of employees are out, you might wonder if you may change the policy if you cannot afford to pay them all. Federal equal employment opportunity laws do not prohibit you from changing you paid leave policy if it is done in a manner that does not discriminate between employees because of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status. Be sure also to consult state and local laws.

If you have short-term or long-term disability plans, employees could also apply for those benefits. If many employees apply, however, the plans could be overtaxed.

Pay During Leave

If employees are not otherwise using accrued paid time off, you need to consider your obligations for paying them. Non-exempt employees must be paid for any hours worked but need not be paid for time not worked.

Exempt employees must be paid their full salary if any work was performed during the week. You may "dock" an exempt employee’s salary in full day increments for disciplinary suspensions, for personal leave, or for sickness under a bona fide sick leave plan (if, for example the employee has run out of accrued sick leave).

In the end, you will need to contemplate the result of your collective actions. How you respond now can have lasting effects far into the future, including on your ability to attract and retain talent. How you treat employees during this crisis will speak volumes, regardless of the law or even policy.