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May employees take FMLA leave to avoid COVID-19 complications?

The answer may surprise you

Posted December 16, 2020

Many employees have underlying conditions that can be exacerbated by the COVID-19 virus. The CDC provides an ongoing, updated list that includes cancer, COPD, heart conditions, weakened immune system, obesity, pregnancy, smoking, and type 2 diabetes, just to name some. Even people with moderate asthma might be at an increased risk for severe illness from COVID-19. Employees with such conditions may be entitled to FMLA leave to avoid complications from the virus. Here’s what the FMLA regulations have to say about taking leave to avoid exacerbating an underlying condition:

“Absences attributable to incapacity under paragraph (b) or (c) [pregnancy or chronic conditions] of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level.” [29 CFR 825.115(f)]

Therefore, if you have employees who ask to stay home to avoid the risks of complications from the COVID-19 virus due to an underlying chronic condition such as those listed by the CDC, you should treat it as you would any FMLA leave request, including providing the notices. You may also request a certification supporting the need for leave, and it should include information that the employee needs the leave to avoid the risk of complications.

If, however, employees do not have underlying conditions, they would not generally be entitled to FMLA leave to simply avoid contracting the virus. Jumping to the conclusion that, just because an employee isn’t immediately incapacitated by pregnancy or a chronic condition could risk a claim against your company.

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

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