Family and medical leave in the era of COVID-19: rights and responsibilities

The Family and Medical Leave Act of 1993 (FMLA) provides time off from your work if you or a member of your family has a serious health condition. In the past few months, FMLA protections have been expanded in response to COVID-19. Here’s what you need to know about who qualifies for FMLA, how it works and how the law has changed recently.

FMLA basics: who and what is covered

You are entitled to family and medical leave under the Family and Medical Leave Act of 1993 (FMLA) if:

1. your employer employs 50 or more employees or you work for a public agency or private elementary or secondary school;
2. you have worked for your employer for at least 12 months;
3. you worked at least 1,250 hours during the 12 months before the beginning of your leave; and
4. your employer has 50 or more employees within 75 miles of your work site.

You may take FMLA leave to care for an immediate family member (spouse, child or parent) with a serious health condition or because of your own serious health condition. You may also take an FMLA leave for the birth or care of your newborn child or the placement with you of a child for adoption or foster care.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either in-patient or continuing treatment by a health-care provider. The condition generally must last more than three consecutive days. Some chronic and/or long-term conditions may qualify as serious health conditions if they involve periodic visits to a health-care provider. For current military service members, serious injury or illness includes pre-existing conditions that were aggravated by service in the line of duty when on active duty.

FMLA leave is usually unpaid unless your employer has a paid leave plan. The law requires your employer to continue your group health benefits during the term of the leave. If you pay a portion of the premium, you must continue to do so during the leave.

Your employer should have a notice posted in your workplace informing you of your rights under the FMLA. A description of your rights should also be included in an employee handbook or in a summary of employee benefits.

Length of coverage

If you are eligible for FMLA leave, you are entitled to take up to 12 work weeks of FMLA leave during any 12-month period. If you are taking FMLA leave to care for a family member in the military service who becomes seriously ill or injured in the line of duty, you are entitled to take up to 26 work weeks of leave during any 12-month period. Be sure to ask your employer how the 12-month period is measured. If you are taking leave due to a “qualifying exigency,” the leave may be restricted to a certain number of days (e.g., 15 days for rest and recuperation).

If you are taking leave to care for a seriously ill spouse, child, parent, or for your own serious health condition, you may be able to take “intermittent” leave, or FMLA leave taken in smaller blocks of time. You must demonstrate that taking intermittent leave is medically necessary, and you must try to schedule medical treatments or your time off in a way that won’t disrupt your employer’s operations.

You and your employer: responsibilities preparing for and returning from FMLA

You must give your employer as much notice as possible of your need to take an FMLA leave. You must also provide your employer with enough information to determine that you qualify for an FMLA leave. If your leave is for your own or a family member’s serious health condition, your employer will probably ask you to provide a certification from the health care provider. That certification tells your employer why and for how long you need to be away from work. Be sure to ask your employer for any forms you need to complete for FMLA leave.

If you take a qualifying FMLA leave, your employer must give you the same or an equivalent job when you return. If you take intermittent leave, your employer may temporarily transfer you to another position that better accommodates your need for short blocks of leave time. However, if you are considered a “key” employee, your employer may deny you reinstatement to your position if that reinstatement would cause the employer substantial economic harm. Your employer must notify you that you are considered a key employee before you take the FMLA leave.

Your employer may not discharge or otherwise discriminate against you simply because you exercise rights under the FMLA.  Your employer cannot count FMLA absences against you under a no-fault attendance system. You have the right to file a complaint with the Department of Labor Wage and Hour Division or you may sue your employer in court for violations of the Family and Medical Leave Act.

What about COVID-19?

The FMLA protects employees who have a “serious health condition.”  COVID-19 could be considered a serious health condition if complications arise. The FMLA would also protect an employee who is needed to care for family members who have complications from COVID-19.  It is important to note that FMLA does not protect an employee who takes off work to avoid exposure to COVID-19.

While the FMLA generally does not provide leave for COVID-19-related issues unless there are complications, the Families First Coronavirus Response Act (FFCRA) does provide some additional temporary protections.  Unless extended further, the FFCRA is currently in effect until Dec. 31, 2020.

The FFCRA may apply to you if your employer employs 500 or fewer employees, but smaller employers of 50 or less might qualify for an exemption.

The FFCRA creates Public Health Emergency Leave (PHEL), which requires covered employers to provide up to 12 weeks of job-protected FMLA leave for a “qualifying need” to employees with at least 30 days of employment. A “qualifying need” exists if eligible employees are unable to work (or telework) because they need to care for a child under 18 years of age due to closure of the child’s school or place of childcare, or because the childcare provider is otherwise unavailable due to the current public health emergency.

The first 10 days of PHEL may be unpaid. Eligible employees may use available paid leave while they are on PHEL, but employers may not require them to use such leave.  Eligible employees may elect to receive emergency paid sick leave, discussed below, rather than use their available paid leave (if any).

Eligible employees who remain on PHEL beyond 10 days are entitled to receive up to 10 weeks of paid leave at two-thirds of the employee’s regular pay rate and work schedule, up to a maximum of $200 per day and up to an overall total of $10,000.

The FFCRA also provides Emergency Paid Sick Leave to all employees (no requirement that the employee has 30 days of employment), which includes:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee is unable to work because the employee is quarantined (because of a federal, state or local government order or advice of a health care provider) or if they are experiencing COVID-19 symptoms and seeking medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at 2/3 the employee’s regular rate of pay because the employee is unable to report to work (or sometimes telework) because of a need to care for an individual subject to quarantine, or to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19; and
• Up to an additional 10 weeks of paid expanded family and medical leave at 2/3 the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

How an attorney can help

Navigating the FMLA can be difficult, and, in light of COVID-19, the laws can change rapidly.  An attorney can help you determine if the leave you are seeking to take is covered by the FMLA or the additional protections provided by the FFCRA and if not, what other avenues of relief you may have.