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May employees take classic FMLA to avoid contracting COVID-19?

Generally, employees aren’t entitled to FMLA leave to prevent getting a disease, but could have rights under other laws.

Posted April 16, 2020

Even during the outbreak, employers need to keep the provisions of the classic Family and Medical Leave Act (FMLA) in mind as the two laws converge in some ways but remain separate in other ways. In light of this, employers have been coming up with several related questions. One such question applies to employers who are covered by the FMLA, even if not covered by the Families First Coronavirus Response Act (FFCRA):

If a company does not need to comply with the FFCRA due to having more than 500 employees, may an employee with an underlying condition take FMLA leave because her 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 (for true FMLA nerds, this definition is found at 29 CFR 825.112 through 825.115). 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 have 15 days to provide a requested certification, absent extenuating circumstances. These are, indeed, extenuating circumstances.

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, you are to 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. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

Some employees may think that the new employee leave provisions of the Families First Coronavirus Act somehow extend into the FMLA. In some ways they do, but not in all situations.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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