The Family and Medical Leave Act forms one of HR’s basic building blocks.
On its face, the law may appear easy to grasp. Employers with 50 or more employees must provide eligible employees — defined as those who’ve logged 1,250 hours of service during a period of at least one year, and who work at a location at which the employer employs at least 50 employees within 75 miles — up to 12 weeks of unpaid, job-protected leave over a 12-month period.
HR professionals, though, know all too well about the law’s complexities. Whether it’s a question of what “12 weeks” actually means or sorting out notice requirements, the FMLA’s wrinkles can frustrate leave administrators to no end. And that can be especially true when the law’s provisions interact with an organization’s paid time off policies.
As far as the latter is concerned, COVID-19 offers HR a mixed bag. While best practices for handling the intersection of FMLA and PTO pre-pandemic are still largely the same as they were before, a complex patchwork of state and local laws and the rise of post-COVID-19 conditions under the umbrella of long COVID-19 merit their own set of considerations, according to three employment law experts who spoke to HR Dive.
#1: The FMLA’s ‘serious health condition’ definition is still key
First and foremost, the FMLA’s definition of what constitutes a serious health condition has not changed. Page 25 of the U.S. Department of Labor’s employer guide states that 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” that makes an employee unable to perform the functions of the job at hand.
In that respect, COVID-19 could fit the FMLA’s definition in the same manner as other health conditions, according to Dolly Clabault, a human resources editor at J.J. Keller & Associates. “Whether COVID is a serious FMLA health condition is the same question as whether bursitis is a serious health condition,” Clabault told HR Dive in an interview. “If it is, the employee is entitled to absences.”
Employers should note that there are multiple types of conditions that may qualify for FMLA, Clabault said. That includes situations in which the employee is given inpatient care such as an overnight stay in a hospital, hospice or residential care facility, as well as any period of incapacity of subsequent treatment in connection with such a stay. It also includes situations in which the employee receives continuing treatment from a healthcare provider. Pregnancy and chronic conditions such as asthma, could also fall under the serious health condition definition.
“There are multiple parts of that definition, and not all parts will apply in any given situation,” Clabault said. “You’ve got to look at all the details.”
#2: Which leaves run concurrently with FMLA? Check state or local laws.
Employers are likely aware that if an employee takes employer-provided PTO for an FMLA-qualifying reason (either because the individual wants to or because the employer requires it), the employer must count that time against the employee’s FMLA allotment. In other words, the two types of leave must run concurrently.
When it comes to other types of leave, “the old admonition is true,” said Jeff Nowak, shareholder at Littler Mendelson; “The FMLA is one layer in light of the growing number of state and local leave and benefit laws, and in light of a growing number of employer-sponsored benefits programs. There are a number of additional layers that employers need to be mindful of as they’re administering leave and accommodations in the workplace.”
Notably, some states have enacted public health emergency legislation that limits concurrent leaves. For example, California’s Supplemental Paid Sick Leave law, enacted in February and later extended through the end of 2022, provides covered employees with 80 hours of paid leave for qualifying COVID-19-related reasons. The law specifies that an employer may not require employees to use any other paid or unpaid leave, PTO or vacation time before the employee uses the supplemental paid sick leave or in lieu of that leave.
In Massachusetts, a jurisdiction that has enacted a 20-week paid family and medical leave entitlement that exceeds the FMLA, employers have other layers to consider, said Walter Foster, member of the firm at Eckert Seamans.
Under that example, an employee who qualifies for the federal, 12-week FMLA leave may also qualify for the 20-week paid Massachusetts leave. These two leaves may run concurrently, Foster said, but an important tidbit is that the first seven days of the state’s 20-week leave are unpaid. Instead, during that time, an employee may utilize PTO to cover the gap, including any of the up to 40 hours of accrued paid sick time to which they may be entitled under state law.
If nothing else, these examples serve as a reminder for employers to look “very carefully” at state and local laws that may impact their decision to run leaves concurrently, Nowak said. “The compliance issues arise when employers take their eye off of the complete picture and they focus only on the FMLA issue, when it often is FMLA on top of a [short-term disability] or disability benefit on top of an overlapping state leave law.”
Moreover, the trend is that more and more states are enacting such laws, said Clabault, and each has its own set of stipulations that may or may not interact with the FMLA. “That just highlights that employers need to be aware.”
#3: Can a coronavirus-positive employee work from home? If so, the FMLA may not apply.
A COVID-19 infection need not automatically translate into a need for FMLA leave, said Nowak; if the infected employee can work from home and otherwise perform all of the essential functions of her job at home, “then arguably, it isn’t an FMLA situation.”
Foster agreed that that scenario could generally hold true, and he noted that the presence of COVID-19 vaccines and the fact that some workers could be asymptomatic with COVID-19 means an infection may not necessarily fit the FMLA’s serious health condition definition.
However, if an employee who primarily works on-site and cannot work remotely receives a positive COVID-19 test and must quarantine from the employer’s on-site location, “that arguably is considered an FMLA-triggering event,” Nowak said. “The long and short of this analysis, for me, is if an employee tests positive and the result is that they need to quarantine from on-site work, I would, out of an abundance of caution, provide the requisite FMLA notices and certification form and give the employee the opportunity to certify that as an FMLA absence.”
#4: Long COVID-19 could make things tricky, especially with intermittent leave.
Public health researchers continue to study the prevalence of post-COVID-19 conditions in the workforce, but the possibility of infection having lingering effects on patients is well established. Long COVID-19 can present a variety of symptoms, according to the Centers for Disease Control and Prevention, ranging from fatigue to shortness of breath to “brain fog.”
Nowak said there’s “no question” that employers will see larger percentages of their workforces requiring FMLA leave to deal with the lingering effects of COVID-19, including long COVID-19, and that long COVID-19 in particular may rise to the level of a disability under the Americans with Disabilities Act. Federal civil rights enforcement agencies have already said as much.
“It’s going to be critical for employers to just learn more about the reality of long COVID and how that is going to impact a typical employee,” Nowak added. “They’re certainly at the early stages of getting their arms around this issue.”
The ADA requires employers to provide reasonable accommodations to workers with disabilities. Crucially, leave may one such an accommodation, and the exhaustion of FMLA may not have any bearing on whether an employee is entitled to additional leave under the ADA. In February, a trucking and property management company learned that lesson the hard way, settling with the U.S. Equal Employment Opportunity Commission for $65,000 after the agency alleged the employer violated the ADA when it fired employees who were unable to return to work after 12 weeks of FMLA.
“I’ve read too many court cases where managers and supervisors were the weak link in the FMLA compliance chain.”
Editor, HR at J.J. Keller & Associates
Employers, Clabault added, may encounter more and more situations in which the ADA is implicated due to the effects of COVID-19, which can include long COVID-19 as well as other areas such as mental health. Pandemic-induced stress may lead to anxiety and physical symptoms which could fall under the FMLA, ADA or similar state and local laws.
“You’ve got to run through the definitions,” Clabault said of the various laws that may be touched by long COVID-19. “You’ve got to give the employee the provision of each law that is most beneficial to the employee.”
Nowak said long COVID-19 could be particularly challenging when it comes to employees requiring extended or intermittent leaves of absence. “Where I see it creating the biggest issues on operations is that those with long COVID quite possibly will need intermittent leave over a lengthy period of time,” he said. “Intermittent leave wreaks havoc on an employer’s operation in a far greater manner than a particular leave of absence.”
#5: Avoid the ‘weak link’ in the FMLA compliance chain.
Ultimately, managerial training may be the most important tool in an employer’s preparation kit for managing PTO and FMLA.
“I’ve read too many court cases where managers and supervisors were the weak link in the FMLA compliance chain,” Clabault said.
Part of the problem lies in the fact that there are a variety of ways in which an employee can put the employer on notice that they may require FMLA leave. Clabault said she has seen cases where an employee so much as crying or sleeping on the job could be translated to FMLA notice situations. “As long as the employee is just giving the employer an inkling that their absence might be because of a serious health condition, that’s when an employer should trigger an FMLA red flag.”
That managers and supervisors may fail to recognize such signs may be all the more troubling given an enigma like long COVID-19. “From a compliance standpoint, it’s easy to miss or ignore a situation where an employee says I can’t come to work, I need some help at work, [or] I’m having asthma-related conditions or having a tough time breathing,” Nowak said. “There will be plenty of managers who don’t recognize that situation as a potential long COVID scenario.”
He added that it is critical that employers train managers not only to identify common characteristics associated with long COVID, but also to engage in the interactive process to determine whether the employee requires assistance on the job.
The message to managers can be really straightforward: “Make sure you run it by HR,” Foster said. “That becomes an easy checkbox for the manager.”