Pension & Benefits News WHD releases FMLA-related COVID-19 guidance
Tuesday, March 17, 2020

WHD releases FMLA-related COVID-19 guidance

By Pension and Benefits Editorial Staff

The Department of Labor’s Wage and Hour Division has published guidance on dealing with coronavirus in the workplace. The guidance is contained in 11 frequently-asked-questions and answers about COVID-19 and the FMLA.

Sick or caring for sick family member. Must an employer grant leave to an employee who is sick or caring for a family member who is sick? Here the WHD division notes that an employee who is sick or whose family members are sick may be entitled to FMLA leave under certain circumstances. Eligible employees of covered employers are permitted to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons, which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Employees on FMLA leave also are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.

The WHD urged workers who are ill with pandemic influenza or have a family member with influenza to stay home to minimize the spread of the pandemic, and also encouraged employers to support these and other community mitigation strategies, specifically by considering flexible leave policies.

Coronavirus avoidance. Can an employee stay home under FMLA leave to avoid getting pandemic influenza? The FMLA protects eligible employees who are incapacitated by a serious health condition, which could be the case with the flu where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition, the WHD said. However, “leave taken by an employee to avoid exposure to the flu would not be protected under the FMLA”, the agency stated, but it reiterated that employers “should encourage employees who are ill with pandemic influenza or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.”

Children dismissed from school. What legal responsibility do employers have to allow parents or caregivers time off to care for the sick or children who have been dismissed from school? Here the WHD noted that covered employers must comply with the FMLA as well as any applicable state FMLA laws. But currently, there is no federal law covering non-government employees who take off from work to care for healthy children, and employers are not required under federal law to provide leave to employees caring for dependents who have been dismissed from school or childcare.

However, the WHD suggested that given the potential for significant illness under some pandemic influenza scenarios, “employers should review their leave policies to consider providing increased flexibility to their employees and their families.” The federal agency also stressed that under federal law, “flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.”

Paid sick leave. Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza? Here, the WHD explained that under federal law, employers are generally not required to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu. However, under Executive Order 13706, some federal contractors may be required to provide sick leave to employees under certain circumstances, such as if the employee or a family member is sick with the flu or seeking care related to the flu.

State laws may differ. Notably, certain state or local laws may have different requirements, which employers should independently consider when determining their obligation to provide paid sick leave.

The WHD explained that if the leave qualifies as FMLA-protected, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances, and it stressed that employers “should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.”


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