Posted by Melissa Fleischer, Esq. on Mar 17th 2020

The Department of Labor has issued a Frequently Asked Questions advisory to assist employers dealing with this current Coronavirus health crisis to understand whether and to what extent the current federal FMLA provides assistance to employees. Perhaps the most important thing for you to know is that within days we will probably have a new law that the House of Representatives has already passed and that is before the Senate now. That law, the "Family First Coronavirus Response Act", will require employers to provide paid family medical leave to some employees impacted by the coronavirus COVID-19. That law is not expected to apply to employers with over 500 employees. We will report to you on what this new emergency law requires and how to ensure compliance as soon as it has been passed.

Now let’s focus on the current FMLA and whether it covers the Coronavirus Covid-19. The Department of Labor has answered this question in their FAQ’s on this matter. The DOL tells us that the FMLA could apply to an eligible employee who has the flu or Coronavirus to the extent that such medical condition or complications therefrom constitutes a “serious health condition” within the meaning of the FMLA. An employee who is sick or whose qualified  family members are sick with COVID-19 may be entitled to leave under the FMLA in certain circumstances. The DOL tells us that, "The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons. This may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.” Therefore, do not merely assume that the flu would not be covered as a serious health condition under the FMLA. To constitute a serious health condition, the employee must be incapacitated and out of work more than three days and either have seen a health-care provider once who has issued any type of medication or the employee can be incapacitated and out of work more than three days and have seen their health-care provider twice, the first visit being within 7 days of the incapacity and both visits having been within 30 days of the incapacity and the employee now has a serious health condition. Alternatively, the employee could merely have one night overnight stay in a hospital, hospice or residential medical care facility and they also would have a “serious health condition”. This could likely be the case for an employee with the Coronavirus so most likely an eligible employee would be able to take leave to care for themselves or a spouse, child or parent with the Coronavirus.

The DOL also makes clear that although employees with the Coronavirus COVID-19 could take protected FMLA leave for themselves or to care for a parent, child or spouse who has the Coronavirus, such leave would not be available for an employee who needs to stay home to avoid getting the Coronavirus COVID-19. However, the Department of Labor did suggest that employers consider implementing flexible leave policies for employees who would not be able to use FMLA for this purpose. “Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected under the FMLA. 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.”

Another issue addressed by the Department of Labor in its FAQ’s was whether employers would need to provide FMLA leave to employees who need to stay home to care for healthy children who cannot attend school because their school has been closed as a result of the Coronavirus. As we all are aware though, FMLA leave would not be available to employees to care for a healthy child. However, the DOL again recommends 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.”

Although the FMLA provides unpaid job-protected leave, employers may and should set forth in their FMLA policies that any FMLA leave an employee takes runs concurrently with any paid leave the employer offers and that employees should exhaust all paid leave before going on unpaid FMLA leave.

The DOL clearly suggests that employers consider implementing flexible policies to provide relief to employees experiencing Coronavirus-related issues during these unprecedented times. “Employers should encourage employees that are ill with pandemic influenza to stay home and should consider flexible leave policies for their employees.”

The Department of Labor also reminds employers that under the Americans with Disabilities Act, employers who are concerned that an employee may have the Coronavirus, may tell the employee to go home and stay away from the office until no longer contagious if they pose a direct threat to themselves or others. “You may exclude an employee with a disability from the workplace if you:

  • obtain objective evidence that the employee poses a direct threat (i.e. significant risk of substantial harm); and
  • determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.

The takeaway for employers is that the FMLA may provide some assistance for employees to care for themselves or qualified family members who have the Coronavirus COVID-19 to the extent that the Coronavirus COVID-19 or complications from it meet the definition of a “serious health condition” within the meaning of the FMLA. However, for situations in which the FMLA does not protect the employee or allow for leave due to issues stemming from the Coronavirus, employers should still consider implementing flexible leave policies to assist their employees in dealing with such issues during this global pandemic.

Clearly, the passage of the Family First Coronavirus Response Act (“FFCRA”) that has passed the House and is now before the Senate will be an important step in protecting employees who are either ineligible for FMLA or are in situations not covered by the FMLA in which they have to stay home to avoid exposure at work or to care for healthy children whose schools have been closed. However, there have already been significant changes to the Act since passed by the House and we do not know yet what other revisions the Senate will make to the Act. The FFCRA includes two important Acts, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) as well as the Emergency Paid Sick Leave Act (“EPSLA”). 

We will keep you updated on the status of the passage of this bill as well as other HR-related issues impacted by the Coronavirus pandemic. Please feel free to contact us at or 914-417-1715 if we can be of assistance with these or any other HR-related issues.