Key to remember: Employees may take FMLA leave only for qualifying reasons, including having a serious health condition.

Applies to: Private employers with 50+ employees and all private employers.

Impact to customers: The pandemic has raised many questions, and this is one.

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

Many employees who have been working from home are now being asked to return to work, and some have trepidation about returning. They fear that entering the worksite will increase their risk of contracting COVID-19. If that were the case, they wonder what might happen, including if they would be allowed to take time off with the job protections under the Family and Medical Leave Act (FMLA).

Eligible employees are entitled to FMLA leave for only qualifying reasons, and one of those reasons is when the employee has a serious health condition. COVID-19 could be a serious health condition but might not always be. The employee would need to be physically unable to perform his or her job. Being subject to a quarantine alone — either by order or by medical advisement — would not necessarily render the employee with a serious health condition. In such situations, the employee might still be able to perform the job.

An employee might also have COVID-19, but not be incapacitated. Many people don’t have any symptoms and others have only mild symptoms. In that situation, the employee might well not have a serious health condition for purposes of the FMLA.

If an employee requests time off due to having COVID-19, you would respond as you would many requests for time off for a medical condition and provide the FMLA eligibly/rights & responsibilities notice. You may also request a certification supporting the need for leave. Once you receive that, you compare the information in the certification to the definition of a serious health condition and see if they mesh. If so, the employee is entitled to the FMLA protections (assuming the employee meets the eligibility criteria). If not, the employee may have leave available under a state law or a company-specific policy, but the reason would not qualify for FMLA protections.

In short, just because an employee has COVID-19 symptoms or tests positive for the virus does not automatically mean that the employee is entitled to FMLA leave.

What about the FFCRA, you ask? The employee leave provisions under the Families First Coronavirus Response Act (FFCRA) also might not apply, depending on the facts involved. If, for example, an employee tests positive for COVID-19 and is not subject to a quarantine order or is otherwise medically advised to self-quarantine (perhaps the test was performed at a drive-through site), the FFCRA might not apply.

Don’t jump to conclusions if an employee has symptoms or tests positive. Go through the FMLA process as you normally would, making sure to carefully review all the information in a requested certification.