PELRAS Update | February 2021 – FMLA in the COVID-19 Universe

Julie A. Aquino, Esq., Campbell Durrant, P.C. | February 2021

In 2020, employers were navigating the leave provisions of the Families First Coronavirus Response Act (“FFCRA”) which expired at the end of 2020. Employers now have questions about COVID-19 related leave under the regular, pre-pandemic Family and Medical Leave Act (“FMLA”). While ordinary FMLA leave will apply to certain COVID-19 related absences, employers should not assume that all COVID-related scenarios qualify for FMLA leave. Each leave request should be assessed based on the individual facts involved.

An employee experiencing COVID-19 symptoms that renders him or her hospitalized or unable to work for three or more days with follow up treatment will likely qualify as leave under the FMLA, assuming the threshold FMLA eligibility criteria are met. This is because the employee is experiencing a “serious health condition” as defined by the FMLA. On the other hand, an employee who is asymptomatic or mildly symptomatic and who is able to work from home is likely not eligible for FMLA leave because they are not incapacitated and, thus, do not meet the definition of having a “serious health condition.” Employers should consult with legal counsel to review the individual facts of a leave request, especially where COVID-19 related questions are involved. 

What about employees who are quarantining due to close contact with a person positive for the virus? The now expired FFCRA provided up to 80 hours of paid time off to an employee quarantining by advice of a health care provider or federal, state or local government order. However, Congress did not extend or replace such benefit for the year 2021. Under the FMLA, an employee who is quarantining but does not otherwise meet the definition of having a “serious health condition” likely is ineligible for FMLA leave. Again, employers should consult with legal counsel to review COVID-19 related leave requests.

What about employees requesting time off to care for a family member with COVID-19? An employee who needs time off to care for a spouse, parent or child who is incapacitated due to COVID-19 will likely qualify for FMLA leave, assuming the threshold eligibility criteria are met. This is because the immediate family member meets the definition of having a “serious health condition.” On the other hand, what if the employee requests time off to care for a child who is usually cared for by a spouse who is sick with COVID-19? In that scenario, FMLA would not apply because the person requiring the employee’s care, i.e., the child, is not incapacitated.

As far as threshold FMLA eligibility criteria, although the FFCRA expired on December 31, 2020, any pandemic related FMLA leave taken in year 2020, including leave to care for a child whose school or day care program was closed, may impact the employee’s FMLA eligibility in year 2021, especially if the employer utilizes a rolling FMLA calendar year.

It is also worth noting that when evaluating whether the employee has sought continuing treatment, the U.S. Department of Labor (“DOL”) now considers telemedicine appointments by video to be the same as an in-person visit for purposes of the FMLA. To be considered an in-person visit, the telemedicine visit must: (1) include an examination, evaluation or treatment by a health care provider; (2) be permitted and accepted by state licensing authorities; and, (3) generally be performed by videoconference. According to the DOL, a simple telephone call, letter, email or text message do not, by themselves, constitute an in person visit.

Lastly, public sector employers in Pennsylvania must also be familiar with Act 17 of 2020, which provides up to 60 days of paid leave to police officers, firefighters and other workers covered under the Enforcement Officer Disability Benefits Law, related to COVID-19. If you have questions regarding leave requests and COVID-19, Campbell Durrant attorneys can help you navigate these complex and evolving legal matters.