Key to remember: An employee or family member needs to have a serious health condition as defined by the FMLA in order for coronavirus-associated absences to be counted as FMLA leave.

Applies to: Employers covered by the FMLA – private employers with at least 50 employees, and all public employers.

Impact to customers: The coronavirus has left many employers with questions, including the application of the FMLA.

Possible impact to JJK products/services: This information will be on the FMLA Manager.

The 2019 Novel Coronavirus (2019-nCoV) has been justifiably making headlines as it continues to spread, and could easily make its way into the workplace, if it hasn’t already. Employers may need to respond to the issue, walking a fine line between keeping the workplace safe and not stepping on employee rights.

Those rights include the FMLA, which entitles eligible employees to up to 12 workweeks of job-protected leave in a 12-month leave year period. Here’s how the FMLA might apply to some situations:

• An employee has travelled through China and might have been exposed: If the employee is not incapacitated, the FMLA would not apply. You could require that the employee refrain from returning to work until cleared by a doctor. 
• An employee has the condition but has no symptoms: You could require the employee to stay away from work and should report the situation to your local health department. You may also suggest that the employee seek medical attention. Since the employee is not incapacitated, the FMLA would not apply. 
• An employee has the condition and is exhibiting symptoms: If the employee meets the FMLA eligibility criteria and is incapacitated to the point he or she is unable to work because of the condition, the employee would be entitled to FMLA protections for the related absence. 

The issue might also involve an employee’s family member, entitling an employee to take FMLA leave to care for the family member.

Beyond the FMLA

You are also prohibited from discriminating against individuals who are disabled or perceived as disabled because they are exhibiting symptoms suggestive of having contracted the coronavirus, per the Americans with Disabilities Act, or against individuals belonging to certain races or nationalities where the virus is most prevalent, per Title VII of the Civil Rights Act.

The ADA requires that you keep employee (and applicant) medical information confidential and separate from the general personnel file, so you should not share employee medical information. Therefore, while you might want to announce to all your employees if a coworker is at risk of or actually has the disease, please refrain.

Instead, as with any other transmittable disease, inform your employees on how to avoid the coronavirus. This includes frequently washing their hands with soap and water for at least 20 seconds; avoiding touching their eyes, nose, or mouth with unwashed hands; avoiding close contact with people who are sick, staying home when sick; covering coughs or sneezes with a tissue then throwing the tissue in the trash; cleaning and disinfecting frequently touched objects and surfaces; and generally using universal precautions. They may also wear a facemask when around other people who might have been exposed.