Understanding Employee Leave of Absence Rights During the COVID-19 Pandemic

​As summer fades and we enter the final month of the third quarter of 2020, there is still to vaccine for COVID-19 and no end in sight for the unprecedented pandemic that rattled the world as we knew it almost six months ago. 

​As such, we as a country have had to accept the new normal both in our personal and professional lives.  To that effect, there have also been necessary governmental measures that have been put in place as a response to the coronavirus outbreak. For instance, in a recent post we chronicled the Department of Labor and the Internal Revenue Services’ Joint Final Rule which extended certain COBRA timelines - such as the COBRA election and COBRA premium payment grace periods - in response to the COVID-19 pandemic in America. This is just one example of the changes that have occurred specifically in the HR/employee benefits industry since the onslaught of the pandemic. Thanks to that Joint Final Rule, however, we can qualitatively assess how the administration of COBRA for companies will differ now then pre-pandemic. One relative topic we have not discussed, but hope to achieve with this post, is to understand how the COVID-19 epidemic has and will affect employee leave of absences.

Family Medical Leave Act (FMLA)

​For those unfamiliar, FMLA is a federal labor law that provides employees with job-protection and unpaid leave for qualified medical and family reasons. Employees are eligible to take FMLA leave if they work for a covered employer and: 

• have worked for their employer for at least 12 months;
• have at least 1,250 hours of service over the previous 12 months; and
• work at a location where at least 50 employees are employed by the employer within 75 miles.

(Certain States May Vary)
 
FMLA leave provides up to 12 weeks of job protection within a rolling calendar year due to a serious medical condition to oneself or to care for an immediate family member that has a serious medical condition – this would include COVID 19. As it stands right now, unlike the Joint Final Rule for COBRA, there has not been any federal amendments to FMLA bylaws in response to the COVID outbreak.  That said, the DOL has released a FAQ in regard to FMLA in response to the COVID pandemic where they answer questions such as, “can an employee stay home under FMLA to avoid getting COVID-19?” (SPOILER: Since FMLA was not amended, leave taken by an employee for the purpose of avoiding exposure to COVID would not be protected under FMLA). To read the rest of DOL’s FAQs on FMLA, check out their page HERE. 

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Americans with Disabilities Act (ADA)

​The other notable job protection leave of absence other than FMLA, is the Americans with Disabilities Act. In short, ADA is a federal law that bars employers from discriminating against employees and applicants who have a disability. As was the case with FMLA, the government did not make any temporary or permanent amendments to the Americans with Disabilities Act in the wake of the coronavirus outbreak. However, although the bylaws of ADA were not altered in response to the ongoing pandemic - employers will have to determine whether the long-term complications of a coronavirus infection warrants protection under the current ADA law. The ADA recognizes disabilities that consist of a mental or physical impairment that substantially limits a major life activity (seeing, hearing, walking, breathing, etc). The employer will first need to determine whether the complications do in fact constitute as an ADA recognized disability, and secondly whether they can make reasonable accommodations for the employee. Considering there have been many reports of coronavirus patients who have experienced lasting effects – such as severe fatigue, trouble breathing, clouded thinking, organ damage, etc. – it’s reasonable that these long-term complications could indeed qualify as disabilities under ADA. If the employer cannot make reasonable accommodations for the employee to continue working, the employee could potentially qualify for a leave of absence under ADA. 

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(to be continued.....)